Bevin v. Powell

• Decision Date: 29 November 1881
• Citation: 11 Mo.App. 216
• Parties: ROBERT M. BEVIN ET AL., Plaintiffs in Error, v. R. W. POWELL ET AL., Defendants in Error.
• Court: Missouri Court of Appeals

11 Mo.App. 216

ROBERT M. BEVIN ET AL., Plaintiffs in Error,

v.R. W. POWELL ET AL., Defendants in Error.

St. Louis Court of Appeals, Missouri.

Nov. 29, 1881.

1. Appellate courts will review only matters arising upon the record proper, where no motion for a new trial, and no motion in arrest of judgment, is filed.

2. In an equitable proceeding, it may be immaterial that a mortgagee was not sane at the date of the execution of a mortgage executed in strict pursuance of a specific written agreement entered into by the mortgagee when sane.

3. Any relief appropriate to the facts alleged and proved may be granted under a prayer for general relief, whether asked for in an answer setting up affirmative matter, or in the petition.

4. The findings of a jury upon special issues submitted to it in chancery, are not conclusive upon the chancellor nor upon the appellate court.

ERROR to the St. Louis Circuit Court, WICKHAM, J.

Affirmed.

W. G. RAINEY and BROADHEAD, SLAYBACK & HAEUSSLER, for the plaintiffs in error: A grantor in a deed may avoid his conveyance by proof that he was non compos mentis at the time of its execution.-- Crawford v. Scovel, 20 Am. L. Rec., 61; Bensell v. Chancellor, 5 Whart. 371; Gibson v. Soper,3 Gray, 279. “Mental incapacity at the time of contracting is a good defence against a contract, whether that contract be evidenced by deed or parol. If the mind be incapable of assenting, the law pronounces the contract void.”-- Reinskoff v. Rogge, 37 Ind. 207; Tolson v. Garner, 15 Mo. 494; Briggs v. Ewart, 51 Mo. 274; Martin v. Smylee, 55 Mo. 577; Shirts v. Overjohn, 60 Mo. 305; Washington Savings Bank v. Ecky, 51 Mo. 272; Trigg v. Taylor, 27 Mo. 245; Haksell v. Champion, 30 Mo. 136; Ivory v. Michael, 33 Mo. 398.

HENDERSON & SHIELDS, for the defendants in error: A conveyance executed by a person non compos mentis and not under guardianship is not absolutely void, but voidable only.--Wag. Stats., p. 712, sects. 4, 5; p. 715, sect. 32; Folsom v. Garner, 15 Mo. 494; Wait v. Maxwell, 5 Pick. 217; Allis v. Billings, 6 Metc. 415; Crouse v. Holman, 19 Ind. 30, 36; Arnold v. Iron Works, 1 Gray, 434; Musselman v. Cravens, 47 Ind. 1; Jackson v. Gumær, 2 Cow. 552-568; Hovey v. Hobson, 53 Me. 451; Newell v. The People, 5 Seld. 45; Sims v. McClure, 8 Rich. Eq. 286.

THOMPSON, J., delivered the opinion of the court.

William T. Bevin, the ancestor of the present plaintiffs, brought this action to set aside a deed of trust executed by him, on the ground that at the time of its execution he was non compos mentis. His original petition, in addition to an allegation that he was of unsound mind at the time he made the deed, contained charges of fraud. Upon this petition the county court, during a vacation of the circuit court, granted him an injunction against the enforcement of the deed of trust. Afterwards he was permitted by the circuit court, without prejudice to his injunction, to file an amended petition omitting the charges of fraud, and asking for equitable relief upon the sole ground of incapacity to make the deed.

The answer, besides denying specifically the allegations of the petition, sets up, as an affirmative defence, that the deceased plaintiff and one Barry & Turner were tenants in common of a certain piece of ground in St. Louis, of which, for convenience, the deceased plaintiff held the legal title; that they agreed to build nine houses upon this tract; that the deceased plaintiff, who was a builder, was to superintend the building of the same; that Barry & Turner were to furnish the necessary money; that it was agreed between these three parties that the deceased plaintiff would convey to Barry & Turner their portions and would give a deed of trust upon the houses which should fall to him, to secure the advances which they should thus make; that during the progress of the building the plaintiff was attacked with paralysis of the right side and of the tongue, but not so as to be deprived of the use of his faculties; that, at his request, his brother undertook to carry out the contract with Barry & Turner, and that the contract was executed by Barry & Turner on their part; that under it a sum exceeding $5,000 was advanced by them to the plaintiff, to secure which the plaintiff executed and delivered the deed of trust in question; that the notes secured by the deed of trust were assigned by Barry to William McManus, for their full value; that neither Barry, Turner, nor McManus had any reason to suspect that the plaintiff was non compos mentis at the time, and that in fact he was in the full possession of his faculties, and honestly discharging his contract with them; that he also conveyed to Barry & Turner their respective portions of the land as agreed; that the deceased plaintiff had ever since remained in possession of the premises conveyed in the deed of trust, receiving the rents and profits thereof, and had never offered no repay the money so advanced by Barry & Turner, and that he was insolvent. The answer then concludes with the following prayer for relief: “Wherefore defendant asks that a receiver may be appointed to take possession of said property and receive and collect the rents thereof, pendente lite, and that plaintiff's petition may be dismissed, and for such other orders and judgments as to the court may seem proper.” A reply put in issue the new matter contained in the answer.

The learned judge submitted seven special issues to a jury and they returned a verdict thereon. This verdict was set aside, and thereafter he submitted to another jury, at the request of the plaintiff, two special issues, as follows: 1. “Was William T. Bevin non compos mentis or unsound in mind on the fifteenth day of July, 1873, the day the notes and trust-deed described in the petition were executed? 2. If he was non compos mentis on the fifteenth day of July, 1873, has he recovered his mind; and if so, was it before the bringing of this suit?” The jury found that he was non compos mentis on the date named, and that he had recovered his mind before the bringing of the suit. Thereupon a motion for rehearing and to set aside these findings, made by the defendants, was overruled. The plaintiff then moved for a final decree on these special findings, which motion the court overruled. The court then, of its own motion, referred the case to a referee, “to try all the questions raised by the pleadings herein, save and except the question of non compos mentis.” Upon these two rulings,--the refusal of the court to enter a decree upon the special findings, and the order of reference,--the plaintiff took a bill of exceptions. In the meantime the plaintiff died, and his heirs, the present plaintiffs, were made parties.

Afterwards, the report of the referee came in; was excepted to; the exceptions were overruled, and the court rendered a judgment dismissing the plaintiffs' petition. Afterwards, the court sustained a motion for rehearing; set aside the order overruling the exceptions to the report of the referee and the judgment dismissing the cause; reinstated the cause on the docket; sustained the exceptions to the referee's report; gave the plaintiffs leave to amend their petition, and then referred the cause to another referee, “to hear additional testimony, if necessary, and to take and state the account between Bevin and Barry & Turner, or either of them.” Upon the order of the court again referring the case, the plaintiffs took another bill of exceptions.

Then there was a stipulation that the new referee might make specific findings in his report, “so as to show how the accounts stood between Barry and Turner, or either of them, and Bevin, at the time of the making of the deed of trust and notes, and also at the time when this suit was brought.” This stipulation was made without prejudice to any right of objection to the authority of this referee. This referee's report came in; exceptions thereto were overruled; and thereupon the court entered a final decree upon the pleadings, evidence, and findings of the referee, finding the issues for the defendants; finding “that the defendant Thomas W. McManus is entitled to have and receive from the estate of William T. Bevin, deceased, the sum of $7,875, being the amount of money received on the notes and deed of trust in controversy, by said William T. Bevin, to his own use and benefit.” The decree then declares that this sum is an equitable lien upon the land conveyed in the deed of trust, describing it; orders a foreclosure of this lien and a sale to effect the same, and bars the plaintiff's equity of redemption therein.

There was no motion for a new trial and no motion in arrest of judgment. In such cases it is well settled that we can consider nothing which is contained in any bill of exceptions embodied in the record, but only such errors as may be apparent upon the face of the record proper; and the reason of the rule is, that it is but just that the attention of the trial court should be specifically directed to errors which it is supposed to have committed, to the end that they may be corrected in that court, without subjecting the other party to the delay and expense of a re-examination of the case in an appellate court. This rule and the reason upon which it rests have been many times reiterated by the supreme court. Exchange Bank v. Allen, 68 Mo. 474; Brady v. Connelly, 52 Mo. 19; Banks v. Lades, 39 Mo. 406; McCoy v. Farmer, 65 Mo. 247; Acock v. Acock, 57 Mo. 155; Curtis v. Curtis, 54 Mo. 351; The State v. Marshall, 36 Mo. 400; Lancaster v. Insurance Co., 62 Mo. 121; Morgner v. Kister, 42 Mo. 466; Collins v. Barding, 65 Mo. 496. The record proper, within the meaning of this rule, is nothing more than the original process with the return thereon, the pleadings, orders substituting parties, and the entry of final judgment. See Bateson v. Clark, 37 Mo. 31, 34. Errors which are apparent upon the record proper must be considered and corrected by us, although there is no bill of...