State ex rel. Place v. Bland
| Decision Date | 06 November 1944 |
| Docket Number | No. 39169.,39169. |
| Citation | 183 S.W.2d 878 |
| Parties | STATE OF MISSOURI at the Relation of C.F. PLACE, Relator, v. HONORABLE EWING C. BLAND, HONORABLE NICK T. CAVE and HONORABLE SAMUEL A. DEW, Judges of the Kansas City Court of Appeals. |
| Court | Missouri Supreme Court |
Eugene C. Kane and Walter J. Gresham for relator.
(1) The decree of the trial court ordered and adjudged that defendant make, execute and deliver to plaintiff deed to 20 acres of land, and that plaintiff execute and deliver his note secured by deed of trust on said real estate, in addition to other matters to be performed. Such judgment operates directly on the title to real estate, and undertakes to take title from one and transfer it to another. Jurisdiction of such cases is placed solely in the Supreme Court by Section 12 of the Constitution of 1875, and Section 5 of the Amendment of 1884 thereto. Kennedy v. Duncan, 224 Mo. 661, 123 S.W. 856; Rice v. Griffith, 349 Mo. 373, 161 S.W. (2d) 220; State ex rel. Long v. Ellison, 272 Mo. 571, 199 S.W. 984; State ex rel. Pemberton v. Shain, 344 Mo. 15, 124 S.W. (2d) 1087; State ex rel. Brenner v. Trimble, 326 Mo. 703, 32 S.W. (2d) 760. (2) Defendant nowhere in the pleadings asked any judgment on any contract existing before October 15, nor did he plead that plaintiff was in default as to any contract before October 15th, and the opinion of respondents recites that an essential part of the proposed contract between the parties had been deposited in a form of escrow by plaintiff, and this had never been delivered so as to complete any contract. The judgment of respondents, denying recovery to plaintiff, goes entirely outside the pleadings and the evidence, and is coram non judice and void. Hecker v. Bleish, 319 Mo. 149, 3 S.W. (2d) 1008; Congregation B'Nai Abraham v. Arky, 323 Mo. 776, 20 S.W. (2d) 899; Campbell v. Campbell, 350 Mo. 169, 165 S.W. (2d) 851; Friedel v. Bailey, 329 Mo. 22, 44 S.W. (2d) 9; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722. (3) The deposit of an instrument with a third party, to be delivered when conditions are met, binds neither party until delivered in accordance with such condition. State ex rel. Equitable Life Assur. Society v. Robertson, 191 S.W. 989; Bales v. Roberts, 189 Mo. 49, 87 S.W. 914; Meredith v. Brock, 322 Mo. 869, 17 S.W. (2d) 345; Kelley v. Illinois Central R. Co., 177 S.W. (2d) 435; Chapin v. Cherry, 243 Mo. 375, 147 S.W. 1084. (4) It is not the duty of an appellate court to cut off plaintiff's recovery because of a possible defense which defendant had chosen not to assert. Sutter v. Raeder, 149 Mo. 297, 50 S.W. 813; Friedel v. Bailey, 329 Mo. 22, 44 S.W. (2d) 9. (5) Where one party has repudiated a supposed contract, and has asserted right to possession of property sold under it, such acts constitute rescission and the other party is relieved of performance. Hargadine-McKittrick D.G. Co. v. Warden, 151 Mo. 578, 52 S.W. 593; Bangs Milling Co. v. Burns, 152 Mo. 350, 53 S.W. 923; Leete v. State Bank of St. Louis, 141 Mo. 584, 42 S.W. 927; Meyers v. Ustick, 243 S.W. 833; Westlake & Button v. St. Louis, 77 Mo. 47, 46 Am. Rep. 4. (6) Pleadings are to be construed as any other written instruments, and must be construed to gain the real intention of the parties. Milliken v. Thyson Comm. Co., 202 Mo. 637, 100 S.W. 604. (7) A contract being part written and part oral, covering the sale and purchase of both real estate and personalty, showing upon its face that it comes within the terms of the statute of frauds, is unenforceable, and the statute need not be pleaded. Hackett v. Watts, 138 Mo. 502, 40 S.W. 113; Young v. K.C. Life Ins. Co., 43 S.W. (2d) 1046; Farina v. Madden, 163 S.W. (2d) 82; Hillman v. Allen, 145 Mo. 638, 47 S.W. 509. (8) Upon reversal of a decree in equity, it is the duty of the appellate court to review the whole record and render its own judgment according to equity and justice, especially where there is a general prayer for relief. Gibbs v. Haughowout, 207 Mo. 384, 105 S.W. 1067; Friedel v. Bailey, 329 Mo. 22, 44 S.W. (2d) 9; Juengel v. City of Glendale, 161 S.W. (2d) 408; Gibson v. Shull, 251 Mo. 480, 158 S.W. 322; Jones v. McGonigle, 327 Mo. 457, 37 S.W. (2d) 892, 74 A.L.R. 550.
Arthur B. Taylor and Walter A. Raymond for respondents.
(1) Title to real estate was not involved in a constitutional sense. State ex rel. Brown v. Hughes, 345 Mo. 958, 137 S.W. (2d) 544; Ballenger v. Windes, 338 Mo. 1039, 93 S.W. (2d) 882; Nettleton Bank v. McGauhey's Estate, 318 Mo. 948, 2 S.W. (2d) 771; Rice v. Griffith, 349 Mo. 373, 161 S.W. (2d) 220; Cunningham v. Cunningham, 325 Mo. 1161, 30 S.W. (2d) 63; Devoto v. Devoto, 326 Mo. 511, 31 S.W. (2d) 805; First Natl. Bank of Monett v. Kinser, 341 Mo. 819, 109 S.W. (2d) 1221; Salia v. Pillman, 328 Mo. 1212, 43 S.W. (2d) 1038; Herriman v. Creason, 181 S.W. (2d) 502; Gibbany v. Walker, 342 Mo. 156, 113 S.W. (2d) 792. (2) He who seeks equity must be willing to do equity and to have equity done to him. Frederich v. Union Electric Light & Power Co., 336 Mo. 1038, 82 S.W. (2d) 79; Bates v. Dana, 345 Mo. 311, 133 S.W. (2d) 326. (3) Relator invited the court to adjudicate all the matters of controversy between him and defendant and is now in poor position to claim any such matter is without the issues. Phelps v. Scott, 325 Mo. 711, 30 S.W. (2d) 71; Harder v. Thrift Const. Co., 53 S.W. (2d) 34. (4) The powers of a court of equity are broad, but they are limited to the cause of action and issues made by the pleadings. The power to give relief in addition to that prayed for means relief consistent with the suit tried. Branner v. Klaber, 330 Mo. 306, 49 S.W. (2d) 169.
Certiorari to the Judges of the Kansas City Court of Appeals bringing up the record in Place v. Parker, 180 S.W. (2d) 538. The cause had been tried by the Jackson county circuit court and appealed to that Court of Appeals, where it was determined last April. The petition for our writ makes two assignments: (1) that the Court of Appeals had no jurisdiction of the appeal because the title to real estate is involved within the meaning of Sec. 12, Art. VI, and Sec. 5, Amendment 1884, Constitution of Missouri; (2) that respondents' opinion contravenes controlling decisions of this court, and therefore is subject to review by this court under its power of superintending control, granted by Sec. 3, Art. VI of the Constitution.
If the first of these assignments is good, this court, and not the Court of Appeals, has had exclusive appellate jurisdiction of the case from the beginning. In event of that finding by us the parties have agreed to submit the cause here on the merits, on their briefs filed in the Court of Appeals and without further oral argument. Further, in that event, the question whether the opinion of the Court of Appeals contravened controlling decisions of this court would pass out of the case, because the whole opinion would be discarded; and we would consider those decisions only as they may bear on the conclusions we reach. We have decided the controversy does involve the title to real estate and that we have original jurisdiction of the appeal. So we discuss first the facts and law with special reference to that issue. The general facts are more fully stated in respondents' opinion, cited in the beginning.
The case originated in a suit filed by relator in the circuit court of Jackson county on October 16, 1942. It was a straight suit on a promissory note for $775, dated April 25, 1941, bearing 8% compound interest. The recitals in the petition were limited to that, except that it charged the note was secured by a chattel mortgage on 75 hogs; and that the defendant had disposed of the hogs for the purpose of avoiding payment of the note and to hinder and defraud relator. Just why these extraneous allegations were inserted in the petition we do not know, for the prayer seeks only a judgment on the note, and costs. At any rate, thus far there was nothing in the case which would give this court appellate jurisdiction, the monetary amount involved not exceeding $7500, as required in such cases. Sec. 12, Art. VI; Sec. 3, Amendment 1884, Constitution, supra; Sec. 2078, R.S. 1939, Mo., R.S.A., sec. 2078.
But the defendant filed an answer praying equitable relief. It admitted the execution of the note (and chattel mortgage) but pleaded payment thereof on August 17, 1942, before the suit was brought, by and through the execution of a written contract between the parties dated that day and afterwards orally modified. Preliminarily, it may be stated the contract provided for the sale of certain realty and personalty by defendant to the relator, the note sued on to be credited on the purchase price. The main question in the case is whether that modified contract is valid and can be enforced by specific performance.
There were several pages of affirmative allegations in the answer with respect to the alleged contract, which was set out as an exhibit. The contract was for the sale by defendant and his wife to relator and his wife of 20 acres of land in Jackson county; an International truck; a Ford truck; and a steam boiler located on the land. The consideration to be paid by relator was $5900, as follows: $1500 cash down; relator to cancel the $775 note sued on plus $80 earned interest, making $855; and to assume a $900 mortgage on the land, as part of the purchase price.
All this would leave a balance of $2645 due from relator to defendant, but the contract pleaded in this answer did not so recite. In an amended answer, to be referred to later, the contract is again set out, showing an added fourth paragraph requiring relator and his wife to execute a note for the $2645, payable "Two Hundred Twenty and no/100 Dollars ($250.00) monthly." There is also an added clause with respect to the assignment of outstanding insurance...
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