Grigsby v. Barton County

• Decision Date: 18 June 1902
• Citation: 69 S.W. 296,169 Mo. 221
• Parties: GRIGSBY et al. v. BARTON COUNTY et al., Appellants
• Court: Missouri Supreme Court

69 S.W. 296

169 Mo. 221

GRIGSBY et al. v. BARTON COUNTY et al., Appellants

Supreme Court of Missouri, First Division

June 18, 1902

Appeal from Barton Circuit Court. -- Hon. W. L. Jarrott, Judge.

Affirmed.

Thurman Wray & Timmonds for appellants.

(1) Grigsby's original petition stated no cause of action in himself. It alleges that he executed a school-fund mortgage to Barton county; that a mistake was made in describing the property; that subsequently he (Grigsby) sold the premises to defendant Poole, and his deed of conveyance to Poole "was made subject to said mortgage of six hundred and twenty-five dollars, and of the consideration of such conveyance the amount of said mortgage debt was not paid to plaintiff;" that defendant was informed and understood that said mortgage covered the land conveyed to him, and prayed for decree reforming the mortgage. Under the allegations of the petition, Grigsby had parted with the land, he had no further interest therein, and the only claim if any, that he would have, would be an action at law for the balance of the purchase price. (2) In the paper called "second amended petition," Grigsby joins with him four new parties plaintiff; so does the first amended petition which is substantially the same as the second amended petition; sets up the same state of facts as the original petition with the further allegations that the four new plaintiffs were securities on the school-fund bond executed by Grigsby; that Grigsby is insolvent; that Poole assumed and agreed to pay off the mortgage; that the land described in the mortgage is not of sufficient value to pay the mortgage debt; and that they (the four new plaintiffs) in case of foreclosure, would have part of the debt to pay. This second amended petition (and the first amended petition is substantially the same) does not state a cause of action in favor of Grigsby for the reasons set forth under point 1, and for the further reason that it alleges him to be insolvent and makes no pretense or claim that he is in any danger. It states no equitable cause of action in favor of the four new plaintiffs. They have paid nothing; they may never have any to pay; it makes no allegation or pretense that defendant Poole is not financially responsible. (3) A petition can not be so amended, even under the liberal provisions of the Code, as to state an entirely different cause of action from the one declared on in the original petition. Heman v. Glann, 129 Mo. 325; Sears v. Mortgage Co., 56 Mo.App. 122; Sims v. Field, 24 Mo.App. 565. (4) The statute does not authorize the court to add, by way of amendment, the name of the only substantially plaintiff or defendant, as that would be the substitution of an entirely new suit by way of amendment. Courtney v. Sheehy, 38 Mo.App. 291; Altheimer v. Teuscher, 47 Mo.App. 284; Clements v. Greenwell, 40 Mo.App. 589; Thieman v. Goodnight, 17 Mo.App. 434. (5) And a motion to strike out the amended petition is the proper practice. Heman v. Glann, supra; Sears v. Mortgage Co., supra; Sims v. Fields, supra.

Cole & Burnett for respondents Grigsby et al.; E. L. Moore for respondent Barton county.

(1) The original petition stated a cause of action. Plaintiff Grigsby is a party to the contract sought to be reformed -- grantor in the school-fund mortgage -- and as such has the right to maintain this suit as the real party in interest. Where a mistake in a deed is mutual and the evidence is clear and convincing to that effect, a court of equity will reform it. Henderson v. Beasley, 137 Mo. 199; Trust Co. v. McDonald, 146 Mo. 467. In all cases of mistakes in deeds, courts of equity will interfere as between the original parties, or those claiming under them in privity such as personal representatives, or purchasers from them with notice of the facts. Martin v. Nixon, 92 Mo. 35; Seiberling, Miller & Co. v. Tipton, 113 Mo. 381; Young v. Cason, 48 Mo. 259; Young v. Coleman, 43 Mo. 179. Grigsby having inadvertently and innocently made a mistake in describing the land in the school-fund mortgage, had the right to ask a court of equity to make the correction. Dodson v. Lomax, 113 Mo. 555. (2) If plaintiffs Van Meter, Harris, Elam and Minnice were necessary parties to a complete determination of the controversy, bringing them in by an amendment of the petition was proper. Secs. 2098 and 2099, R. S. 1889; Butler v. Lawson, 72 Mo. 227; Hayden v. Marmaduke, 19 Mo. 403; Merrill v. St. Louis, 83 Mo. 224. A petition may be amended without prejudice to the proceeding already had at any time before the answer thereto is filed. Sec. 2102, R. S. 1889; Morrison v. Herrington, 120 Mo. 665. And the petition may be amended by adding new parties plaintiff or striking out parties plaintiff. Ragan v. Railroad, 111 Mo. 456; Merrill v. St. Louis, supra; Davis v. Ritchie, 85 Mo. 501.

OPINION

BRACE, P. J.

This is a suit in equity instituted by George W. Grigsby as plaintiff, against Barton county and A. C. Poole as defendants, to correct an alleged mistake in the description of the premises in a school-fund mortgage executed by the said George W. Grigsby to the county of Barton to secure the payment of a bond for $ 625, with interest, given by the said Grigsby as principal with his co-plaintiffs, A. Van Meter, G. W. Harris, N. B. Elam and S. J. Minnice as his sureties, for that amount of money borrowed of the school fund of said county. The premises having been afterwards conveyed by deed to defendant A. C. Poole subject to the mortgage.

From the decree of the circuit court correcting the mistake as prayed for, this appeal is taken; the only error assigned for reversal being the refusal of the court to sustain the following motion:

"Now comes the defendant, A. C. Poole, and moves the court to strike out the paper filed herein called the second amended petition, filed September 28, 1898, for the reason that the same joins four new parties plaintiff, who were not parties to the original suit in this case, and who are not, under the facts alleged in the original petition entitled to any relief; and the only plaintiff in the...