Estes v. Fry

• Decision Date: 06 February 1888
• Citation: 6 S.W. 660,94 Mo. 266
• Parties: ESTES v. FRY et al.
• Court: Missouri Supreme Court

6 S.W. 660

94 Mo. 266

ESTES v. FRY et al.

Supreme Court of Missouri.

February 6, 1888.

1. EJECTMENT — EQUITABLE DEFENSE — PRAYER FOR AFFIRMATIVE RELIEF.

Plaintiff, claiming under a trustee's deed, brought ejectment against defendant, who answered setting up an equitable defense, alleging that, at the time of the sale under the trust deed, the notes for which it was given as security were fully paid, and that the sale was otherwise fraudulent. Defendant asked that the sale be set aside if the notes should be found to be paid, or to redeem if found otherwise. Held, that the refusal to strike out this defense was not error.

2. SAME — SUBMISSION OF ISSUE TO JURY — REVIEW ON APPEAL.

Where an equitable defense is interposed in an action at law, the submission to a jury of facts triable in equity by the court cannot be taken advantage of on appeal, where no objection thereto has been made in the court below.

3. PAYMENT — EVIDENCE — PAROL TO VARY WRITING.

As between the original parties, parol evidence is admissible to prove that other payments have been made on certain notes than those mentioned in a deed of trust subsequently made as security therefor.

4. APPEAL — REVIEW — OBJECTIONS TO EVIDENCE — HARMLESS ERROR.

Where, on appeal, all the evidence is preserved by bill of exceptions, it is the policy of the court to examine what is competent, and affirm the decree of the court below if, in their judgment, it is right, though errors may have been committed on the trial.

Appeal from circuit court, Pike county; ELIJAH ROBINSON, Judge.

Action in ejectment, brought by Fielden Estes against Jacob Fry and others. Judgment was rendered for the defendants, and plaintiff appeals.

W. H. Morrow, for appellant. W. H. Biggs, M. G. Reynolds, and D. A. Ball, for respondents.

BLACK, J.

The plaintiff prosecutes this appeal from a judgment against him in an action of ejectment. On the twenty-ninth April, 1874, the defendant Jacob Fry made a deed of trust on the land in question to secure the payment of three promissory notes, — one, dated December 11, 1866, for $1,100, due at one day; the second, dated April 1, 1870, for $1,963.33, — both payable to Fielden Estes, the plaintiff. The third note bears even date with the deed of trust, April 29, 1874, is for the sum of $1,076.24, due in two years after date, and payable to Jacob Block. All these notes bear interest at 10 per cent. per annum, compounded annually. Plaintiff became the owner of the Block note in 1875. On the third July, 1881, the trustee sold the land for alleged default in the payment of these notes, and the plaintiff became the purchaser. The answer of the defendant Jacob Fry is — First, an admission that he is in possession of the land, with a denial of the other matters stated in the petition; second, an equitable defense, with a prayer for affirmative relief; and, third, a plea of a former adjudication of the same matters in a suit between the same parties.

1. Plaintiff moved to strike out the third defense, on the ground that it did not show an adjudication on the equitable defense, and was therefore no bar to the prosecution of this action; which motion was overruled. It is not necessary to consider the action of the court upon this motion, for the court held, when the record in the former suit was read in evidence, that the judgment in that case constituted no bar to the prosecution of this suit. The case is here for review on the equitable defense; the third having been finally determined in favor of appellant.

2. The defendant Jacob Fry, in his second defense, in substance states that the trustee's sale was fraudulent, in this: that the notes described in the deed of trust were paid off at the date of the sale. A statement of the various payments claimed to have been made on the notes is then given. Coupled with these allegations are others which the plaintiff moved to strike out. They are, in substance, that defendant is a man of no learning, being unable to read or write; that he trusted to plaintiff to make the proper credits; that plaintiff failed and neglected to give him proper credits, for the purpose of cheating him out of his farm; that he has no memoranda or written account of the payments, because of the promise of the plaintiff to enter any and all credits upon the notes; that the plaintiff has refused to give him any information as to the credits indorsed on the notes. By this defense, the defendant seeks to cancel the trustee's deed, and to have the deed of trust declared satisfied, with a further prayer that, if it should be found that the notes were not fully paid, he be allowed to redeem. The theory of the defense is that the trustee's sale was fraudulent, and it was entirely proper to set up the circumstances constituting the fraud. The answer must be taken as a whole, and considered in the light of the relief asked. Proof of payment of the notes in full would be sufficient to set aside the trustee's deed; but the answer contemplated that there might possibly be a balance due on the notes, and, in order to redeem, proof of the alleged fraudulent acts would become inportant. There was no error in overruling the motion.

3. The court submitted the issues to a jury, and of this action error is assigned. The fact that an equitable defense is interposed in an action at law, it has been held, does not convert the suit from an action at law to one in equity. Wolff v. Schæffer, 74 Mo. 154; Carter v. Prior, 78 Mo. 222. But where the answer sets up a distinct claim with the prayer for relief which a court of equity alone can give, as is the case here, the issues made by the answer and the reply thereto should be tried as a case in equity. Durfee v. Moran, 57 Mo. 374; Kitchen v. Railroad Co., 59 Mo. 517. The court should have tried this defense itself,...