Stark v. Zehnder

• Decision Date: 29 May 1907
• Citation: 102 S.W. 992,204 Mo. 442
• Parties: STARK et al. v. ZEHNDER et al.
• Court: Missouri Supreme Court

102 S.W. 992

204 Mo. 442

STARK et al. v. ZEHNDER et al.

Supreme Court of Missouri, Division No. 1.

May 29, 1907.

1. APPEAL—RECORD—SUFFICIENCY.

In the absence of a sufficient showing by the abstract that on the face of the court record proper there are entries showing that a motion for a new trial was filed, that it was overruled, and that the bill of exceptions was filed, the court will not consider any alleged error contained in the bill of exceptions.

2. SAME—ABSTRACT.

The abstract on appeal should distinguish between what it intends to say is shown by the record proper, and what it intends to say is shown by the bill of exceptions.

3. SAME—BILL OF EXCEPTIONS.

A bill of exceptions, standing alone, cannot prove its own validity; a statement therein that it was signed and filed not being sufficient evidence of the signing or filing.

4. SAME—RECORD ENTRY—COPYING INTO ABSTRACT—NECESSITY.

It is not necessary to copy the record entries into the abstract on appeal; it being sufficient if the substance is stated.

5. LIMITATION OF ACTIONS — ACTIONS NOT OTHERWISE PROVIDED FOR — REFORMATION OF DEED.

Under Rev. St. 1899, § 4272 [Ann. St. 1906, p. 2347], limiting to 10 years "actions for relief not herein otherwise provided for," the right to maintain a suit in equity to reform a deed is barred after 10 years from the date the right accrues.

6. SAME—ACCRUAL OF RIGHT OF ACTION.

Where defendants, to secure the payment of notes, gave plaintiff a lien on land, which, by inadvertence, was incorrectly described, plaintiff's right to have the contract reformed accrued as soon as the mistake occurred, and he was not

compelled to wait until default in the payment of the notes.

7. REFORMATION OF INSTRUMENTS — LIMITATIONS—CONTRACT CONCERNING LAND—POSSESSION.

In an action to reform a contract giving plaintiff a lien on land to secure the payment of notes, possession by defendants was not necessary to the maintenance by them of the plea of the statute of limitations.

8. SAME.

Rev. St. 1899, § 4290 [Ann. St. 1906, p. 2359], provides that if any person, by absconding or concealing himself, or by any other improper act, prevent the commencement of an action, such action may be commenced within the time herein limited after the commencement of such action shall have ceased to be so prevented. Held, that the statute was not applicable so as to prevent the running of limitations to a suit to reform an instrument creating a lien on land in plaintiff's favor, where it was not charged that defendant was guilty of an act preventing plaintiff from commencing the suit.

Appeal from Circuit Court, Butler County; J. L. Fort, Judge.

Action by C. M. Stark and others against John G. A. H. Zehnder and another. Judgment for plaintiffs, and defendants appeal. Reversed.

E. R. Lentz, for appellants. David W. Hill, for respondents.

VALLIANT, J.

This is a suit in equity begun November 14, 1903, to foreclose liens on certain land in Butler county. The petition is in three counts, each based on a separate contract, but all of the same character. The statements in the first count are to the effect that on December 17, 1891, defendant John G. A. H. Zehnder being then the owner of a farm consisting of the south half of the southeast quarter of section 27, township 25, range 6 east, containing 80 acres, entered into a contract in writing with the plaintiffs, whereby the plaintiffs sold and agreed to deliver to Zehnder 300 fruit trees, to be planted on this land, for the sum of $125.50, to be paid in certain annual installments as therein specified, with 6 per cent. compound interest, the last payment to be made 10 years from the date of the contract, and it was therein stipulated that the purchase price and interest should be a lien on the farm from the date of the contract until paid in full; that plaintiff had delivered the trees, but defendant had failed to pay the price, or any part thereof; that the contract was duly acknowledged and recorded January 2, 1892. But the petition avers that, in drawing the contract, "by mistake of all the parties," an erroneous description of the land was inserted in lieu of the true description above given. The prayer of the petition was that the contract be so reformed as to contain the correct description, that plaintiff have judgment for the price named and interest, that it be decreed to be a lien on the land, that the defendants' equity of redemption in the same be foreclosed and the land sold to satisfy the debt, interests, and costs. The second count was based on a similar contract, dated January 17, 1892, for 8,000 fruit trees, at the price of $1,933, and interest, and the third count on still another contract of like character, dated January 27, 1892, for 1,000 trees, at the price of $150, and interest; the payments to be made as in the first count, and the last to be made in 10 years. All the trees were to be planted on the same land, and a lien thereon granted to secure the payments under the three contracts. In each count it is averred that the plaintiffs delivered the trees as agreed, but that defendants had failed to pay for the same; that the same mistake in the description of the land occurred in each contract. The prayer in each count was of the same character as that in the first. In the petition, Zehnder was the only defendant named. He appeared at the return term and filed an answer, and at that term also appeared his wife, Mrs. Zehnder, who petitioned the court to make her a party defendant, which the court did, and she filed an answer, wherein, after a general denial, she set up the plea that the land in question was hers; that her husband, acting as her agent, bought it, but without her knowledge or consent took the deed in his own name; that the purchase price was paid with her money—her separate statutory property; that the alleged contracts on which the plaintiffs sue, if made as claimed, were made without her knowledge or consent. In her answer is also the plea of the 10-year statute of limitations on the alleged right of plaintiffs to reform the contracts. Zehnder's answer admitted the signing of the contracts, and then a general denial. It also set up the affirmation plea that the plaintiffs imposed on him in the making of the contracts in certain respects which it is not necessary now to specify, and he also pleaded the 10-year statute of limitations against the claim to reform the contracts. The plaintiffs filed a reply, saying that the fact that the land was not correctly described in the contracts did not come to their knowledge until 1903, and as to Mrs. Zehnder's claim the reply contained several averments intended by the pleader as a plea to estop her from claiming that the land was hers; but, as the record before us is not in shape to go into the questions of fact, it is not necessary to set out those averments. The cause comes here on a short transcript, from which it appears that there was a judgment for the plaintiffs on all the counts granting the relief prayed, and from that judgment the defendants appealed.

1. Appellants have filed what they call "Abstract in Lieu of Full Record," in which is contained the pleadings, evidence, and several statements as of the rulings and proceedings of the court in the progress of the trial and subsequent thereto; but it is impossible to tell from this abstract whether the alleged rulings and orders of the court appear on the face of the court record proper or are preserved only in the bill of exceptions. Upon that condition of the abstract, respondents base a motion to dismiss the appeal. We should not dismiss the appeal in this case, because we have, in sufficient...