Alfred v. Pleasant
| Citation | 175 S.W. 891 |
| Decision Date | 01 April 1915 |
| Docket Number | 17064 |
| Parties | ALFRED v. PLEASANT ET AL. |
| Court | United States State Supreme Court of Missouri |
Appeal from Circuit Court, Laclede County; L. B. Woodside, Judge.
Action by George Alfred against W. E. Pleasant and anther. Judgment for defendants, and plaintiff appeals. Affirmed.
J. T Moore and I. W. Mayfield & Son, all of Lebanon, for appellant.
L. C Mayfield, of Lebanon, for respondents.
The petition is in the ordinary form in ejectment for the recovery of 80 acres of land in Laclede county. The answer after a general denial, sets up in a second count, in substance, that on December 12, 1905, the defendants borrowed from plaintiff $125, evidenced by their note of that date due in three years, with interest at 8 per cent. from date, and secured by deed of trust in ordinary form on the land in controversy; that in December, 1909, defendants sold plaintiff four cattle for $80, which sum was, by agreement, to be applied by way of credit on the note, which plaintiff fraudulently failed to do; that defendant Edward Pleasant, the father of his codefendant, was old, feeble, unable to read or write, and incapable of transacting any business, all of which was done by the son; that plaintiff often told defendants that he did not want them to pay the principal of the note, but only the interest, relying upon which they made no effort to pay the same, which they could and would otherwise have done at any time; that in September, 1910, the son was called to Neodesha, Kan., to the sick bed of one of his wife’s relatives, and as soon as he had left this state the plaintiff fraudulently, with intent to cheat and defraud defendants out of their land, proceeded to advertise and sell the same under the deed of trust without the knowledge of or notice to either defendant, although he only lived about a mile and a quarter from the land in question on which the defendants with their families resided; that at such sale the land was bid in by plaintiff for $250, and he received a trustee’s deed therefor without payment of the amount so bid; that upon the return of the defendant W. E. Pleasant from Kansas he learned of the sale, and tendered to plaintiff more than the amount due on said note, with expenses and compensation for his trouble in said sale (which tender is continued in the answer) and demanded of plaintiff a deed, which he refused, neglected, and failed to make; that the defendants would have paid off said note when due, and at any and all times thereafter, had it not been for plaintiff’s assurance, fraudulently made, that he did not want payment of the principal, but only of the interest; that the land was reasonably worth $800. Defendants ask that the trustee’s sale and deed be set aside, and that they be permitted to redeem. A third count, founded on section 2535, Revised Statutes 1909, is added, asking that the title as between plaintiff and defendant be ascertained and declared, and for general relief. The plaintiff moved to strike out all the essential parts of the second, or equitable, count, without assigning any ground therefor, which motion was overruled by the court, and the plaintiff excepted. There was no replication, but the parties, without further dilatory pleading, went to trial, upon which no objection was made to the sufficiency of the equitable defense pleaded in the answer upon which the most of the evidence on both sides was predicated. The court found the issue for defendants; that the sale of the land was fraudulent; that the bid therefor, which was found to be $183.60, was not fully paid; that the reasonable cost of advertising was $12, and other expenses $13, and adjudged that the defendant be permitted to redeem the land from the sale upon the payment of the sum of $225, which sum was tendered in open court and refused by plaintiff. A motion for new trial was filed, assigning the following grounds:
"First, the finding of the court is contrary to the evidence; second, there is not sufficient evidence to support the finding of the court; third, under the law, pleadings, and evidence the court should have declared the law to be defendants could not recover; fourth, the court erred in permitting defendants to amend their answer at the close of all the evidence."
When the case was called, it did not seem to occur to either party that no reply had been filed, and they went to trial on the merits of the case stated in the equitable count of the answer, introducing their evidence and submitting the case on the issue tendered, thereby taking for granted that it had been formally joined, and it is now too late for either party to cast upon the other the full consequences of a mistake in which he himself participated. What both acted upon will be considered as having been done. To that extent the law will assist them in giving effect to their intention. College v. Dockery, 241 Mo. 522, 555, 145 S.W. 785; Roden v. Helm, 192 Mo. 71, 85, 90 S.W. 798; Ferguson v. Davidson, 147 Mo. 664, 670, 49 S.W. 859; Heath v. Goslin, 80 Mo. 310, 318, 50 Am. Rep. 505; Meader v. Malcolm, 78 Mo. 550; Henslee v. Cannefax et al., 49 Mo. 295. The parties, who were perfectly ready, have secured a trial of the whole issue. We will therefore consider no objection to the answer not vital (College v. Dockery, supra, 241 Mo. 555, 145 S.W. 785), and, giving it the benefit of all the facts stated in it either directly or by clear implication, we think it sufficient to authorize the relief granted by the court. On the other hand, we will consider, as the parties considered, its allegations of new matter denied.
The appellant insists that this cross-action to redeem cannot be maintained except upon condition of compliance with the provisions of section 2830, R. S. 1909, by giving bond and security for interest, damages, and waste. These defendants have done better. They charge in their answer that upon learning of the sale they offered to pay the plaintiff more than the court has found due to him. They have continued the offer in their pleading, and have now brought it into court for him, and he still refuses to accept it. He plants himself upon the ground that he has fairly acquired the property which is worth more, and at this state of the proceeding he will be permitted to stand there. A bond can serve no additional purpose, and is not required. Potter v. Schaffer, 209 Mo. 586, 597, 108 S.W. 60; Vanmeter v. Darrah, 115 Mo. 153, 158, 22 S.W. 30. The defendant is asking for no "benefits" of section 2829, but simply for the right, which has always existed independently of that statute, to protect himself from fraud and imposition. That right exists against the mortgagee in common with every other purchaser who may have accomplished his purchase by fraud; and in all such cases where equity requires the mortgagor to redeem as a condition of relief, the tender of the redemption money, kept good, is all that the wrongdoer can require or expect. This is explained by this court in Moss v. King, 212 Mo. 578, 584, 111 S.W. 589, 591, in which a suit to redeem was...
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