Turner v. Butler
| Decision Date | 22 December 1894 |
| Parties | Turner v. Butler et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Miller Circuit Court. -- John M. Williams, Esq., Special Judge.
Affirmed in part and reversed in part.
""John W. Booth with ""W. S. Pope for appellants.
(1) In Missouri a referee has no power to permit an amendment of a pleading. (2) Courts should not allow a neglect to file a replication at the proper time to be remedied in such a manner as to deprive the opposite party of a fair trial of the facts to be put in issue by such replication. (3) A mortgagor's equity of redemption is subject to sale on execution, and a purchaser holding under sheriff's deed conveying the interest of the mortgagor is substituted to all his rights, and may maintain a bill for an accounting and to redeem. ""Matson v. Capelle, 62 Mo. 235; ""O'Neil v. Capelle, 62 Mo. 202. (4) An assignee, whether he be assignee or the mortgagor of the equity of redemption, stands in the place of his assignor in respect to the account, both as to the time before and the time after the assignment. 2 Jones on Mortgages [4 Ed.], p 71, sec. 1119. (5) A transfer of the equity of redemption while the mortgagee is in possession necessarily carries with it to the purchaser the right to an account for rents and profits received by the mortgagee before, as well as after such transfer, as an incident to the right of redemption. Jones on Mortgages, ""supra. (6) A conveyance of the equity of redemption disposes of all right of the original mortgagor to the premises, and to an account for rents and profits. And after such conveyance, whatever settlement the mortgagee may make with his assignee does not concern him. (7) In taking an account between mortgagor and mortgagee, the mortgagee, in the absence of willful default or gross negligence, will not be held accountable for anything more than the actual rents and profits received. Jones on Mortgages, ""supra, sec. 1123; ""Turner v. Johnson, 95 Mo. 431. (8) A distinction exists between a mortgagee, in possession under a deed on its face a mortgage, and one in possession under a deed in form absolute, and in fact only a mortgage by the application of equitable rules to an oral agreement. In such case the mortgagee, is chargeable only with what he has received, not what he might have received. Jones on Mortgages ""supra, sec. 1123. (9) Mortgagee in possession may, without special contract, cut timber and clear land. He is entitled to make the most of the property for the purpose of realizing what is due him. He has only to account for the proceeds of the property. Jones on Mortgages, ""supra, sec. 1124. (10) A mortgagee, though in possession, is not a trustee for the mortgagor within the rule forbidding trustee to purchase the estate with which he has been entrusted. He may acquire the equity of redemption, either directly from the owner or by purchase at sale on execution. 1 Jones on Mortgages [4 Ed.], sec. 711; 1 Boone on Mortgages, sec. 114; 1 Pingrey on Mortgages, pp. 907, 908, sec. 899; ""Woodlee v. Burch, 43 Mo. 234; ""Wilson v. Vanstone, 112 Mo. 315; 1 Sugden on Vendors [8 Am. Ed.], top p. 99. (11) In equity cases, where the evidence is preserved, the supreme court is not concluded by any finding in the trial court; but, where the evidence warrants, it will review such finding and reverse the case, with directions to the lower court to enter a proper judgment. (12) A bill to redeem a mortgage and for an accounting does not open for inquiry all demands and dealings between the parties. (13) On a bill to redeem, costs should be adjudged against mortgagor. ""Turner v. Johnson, 95 Mo. 431.
""J. R. Hansbrough and ""D. H. McIntyre with ""Thoroughman, Carter & Thoroughman for respondents.
(1) After a trial and verdict, as though a replication was in, it is too late to raise the objection that such pleading had been omitted. ""Smith v. St. Joseph, 45 Mo. 450; ""Howell v. Reynolds County, 51 Mo. 156. In such a case a general denial may be filed ""nunc pro tunc in aid of the verdict. ""Foley v. Alkire, 52 Mo. 319. (2) Rees was simply a trustee for Turner, and his purchase from Joy inured to the benefit of his ""cestui que ust. Edwards v. Gottschalk, 25 Mo.App. 552; ""Baker v. Railroad, 86 Mo. 78; 2 Perry on Trusts [4 Ed.], sec. 602""v: McAllen v. Woodcock, 60 Mo. 174; ""Lass v. Sternberg, 50 Mo. 124. And it matters not if Rees' grantor was a purchaser at a judicial sale. ""Roberts v. Moseley, 64 Mo. 511. Where one receives a deed absolute in form, but intended as security only, and with a promise to reconvey upon payment, he becomes a trustee for the grantor to the extent of the grantor's interest therein. ""Jasper v. Hazen, 44 N.W. (N. Dak.), 1018. (3) It is in the discretion of the court to award costs. R. S. 1889, sec. 2932. This discretion will not be disturbed, unless there has been a clear abuse of it. ""Turner v. Johnson, 95 Mo. 453.
The plaintiff Turner commenced this suit against Morris D. Rees. The latter died while the cause was pending in the circuit court, and it was revived in the name of his devisee and the administrator de bonis non of his estate, with the will annexed.
It is alleged in the amended petition that plaintiff conveyed one thousand acres of land to Rees, by a deed absolute in form, dated the sixth of June, 1882; that the deed was in fact made to secure $ 2,500 advanced by Rees for the use and benefit of Turner; that Rees at the same time agreed to use the tie timber on the one thousand acres and on seven hundred acres and on still another eighty acres and allow Turner therefor the sum of five cents per tie, the amount going to Turner for the tie timber to be applied in payments of the money so advanced. It is also alleged that Rees cut two hundred thousand ties on the land and that he has received rents for the cleared portion.
The answer admits that Turner conveyed the one thousand acres to Rees by deed absolute in form, though intended as a security as alleged. It admits the alleged agreement as to ties to be taken from the one thousand acres, but denies that the agreement covered ties to be taken from the other tracts, and denies that Rees received more than twenty thousand ties from and after the sixth of June, 1882. New matter is alleged which will be noticed hereafter.
The suit, it will be seen, is one for an accounting and to divest the devisee of Rees of the title to the one thousand acres. The issues of fact were heard by a referee who found there was due to the plaintiff, after deducting all advances and payments made by Rees, the sum of $ 3,685.85. The defendants appealed from a judgment entered on the referee's report.
1. The first question in the case arises out of the following facts: The cause was sent to the referee after an amended petition and an answer thereto had been filed and before the plaintiff filed a reply. When the cause came on for hearing before the referee, the plaintiff offered to file a reply, thereby putting in issue the new matter set up in the answer, but the defendants objected. As to this offer, the referee says in his report: "I permitted the replication to be presented and herewith return it with the papers, and have heard the case as if it had been properly filed." After the referee's report and exceptions thereto had been filed, the court allowed the reply to be filed nunc pro tunc, and of this ruling, and also that of the referee, the defendants complain, insisting that the new matter set up in the answer stands admitted.
The pleadings ought to have been made up before the cause was sent to the referee, but it is evident the failure to file the reply was a mere oversight on the part of the plaintiff. The cause was heard by the referee as if a reply had been filed, and this we are able to say from an inspection of the record, regardless of what the referee says on that subject; for it appears defendants produced much evidence to prove the new matter set up in their answer. Where a case has been tried by the court, or by the court and a jury, as if the new matter set up in the answer had been denied, the plaintiff will not be heard to say the new matter stands admitted because no reply was filed. Smith v. The City of St. Joseph, 45 Mo. 449; Howell v. Reynolds County, 51 Mo. 154; and in such a case the reply may be filed nunc pro tunc . Foley v. Alkire, 52 Mo. 319. The same rules apply with equal force where the issues of fact have been tried by a referee.
It is true the defendants in this case made the point before the referee that no reply had been filed, but they thereafter went on and put in their evidence the same as if a reply had been filed, and this being so, the court did not err in allowing the reply to be filed nunc pro tunc.
2. The next question is whether certain facts set up in the answer constitute any defense. The new matter presenting this issue of law is to the following effect: That the plaintiff has no right of redemption, because his interest in the land was sold to one Joy at a sale under an execution issued on a judgment rendered in 1885, in favor of Joy and against Turner; and in this connection it also alleged that Rees purchased the interest thus acquired by Joy and paid therefor the sum of $ 250, the deed having been made in 1885.
In support of this defense we are cited to authorities which hold that a mortgagee does not stand in the position of a trustee, and that he may purchase the mortgagor's equity of redemption at a sale under a prior and paramount title; but the principle is not applicable to a case like this. Here, Rees held the absolute title, not simply as security, but for all the purposes specified in the agreement, and this agreement bound him to do...
To continue reading
Request your trial