Bouton v. Pippin
| Decision Date | 21 December 1905 |
| Parties | BOUTON v. SAMUEL G. PIPPIN et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Hickory Circuit Court. -- Hon. Argus Cox, Judge.
Modified and affirmed.
Rechow & Pufahl for appellants.
(1) The court should have given the instructions asked by defendants. They contained correct principles of law. The instructions asked by defendants and refused by the court covered the issues presented in the answer of defendants, while those given by the court only presented the same in part. (2) The court should have determined the rights of Mrs. Margaret J Pippin. A court of equity will do full and complete justice. Butler v. Lawson, 72 Mo. 246; Carby v Bean, 44 Mo. 379; Real Estate & Savings Inst. v Collonious, 63 Mo. 290; Woodward v. Mastin, 106 Mo. 362; Nelson v. Betts, 21 Mo.App. 220; Clem v. Ins. Co., 29 Mo.App. 666; Jordan v. Harman & Platt, 56 Mo.App. 197. (3) A deed may be reformed and set aside as to one party when it is valid as to others. Mays v. Pryce, 95 Mo. 603. A court of equity has power to set aside a conveyance obtained by fraud and to protect the right of homestead and dower. Devorse v. Snider, 60 Mo. 235.
J. H. Childers for respondent.
The only interest Margaret J. Pippin had in the land was an inchoate dower right, which might ripen into a vested right or a chose action, or might not, depending upon whether she survived her husband. R. S. 1899, sec. 2933; Tiedeman on Real Property, sec. 115.
OPINION
Two of the appellants, William C. and Margaret J. Pippin, are husband and wife, and, as such, on the 25th day of November, 1890, to secure a promissory note, executed a deed of trust in the nature of a mortgage to one Sidway, trustee, conveying certain real estate in Hickory county, inter alia, eighty acres, to-wit, the east half of the northeast quarter of section 33, township 37, and range 20, the homestead of the said two Pippins -- the legal title of all the real estate involved being in the husband. The secured note having been extended for a term and thereafter falling due, the deed of trust was foreclosed by a "substituted trustee" -- one Hartman. The purchaser at such sale, plaintiff, received a trustee's deed, and brings this action in ejectment, in conventional form, to recover possession of the land covered by the trust and trustee's deeds. Why Samuel G. Pippin was made a party defendant is undisclosed.
Said Pippins interposed an answer -- a general denial with certain affirmative matter -- and thereby, among other things, in substance alleged that the said eighty acres were Wm. C. and Margaret J. Pippin's homestead; that Margaret J. refused to convey or mortgage the same; that she could neither read nor write; that neither the husband nor the wife knew the said homestead was covered by the deed of trust at its execution; that it was not included therein by their consent, and that the said deed of trust was not their act and deed, etc. These allegations were supplemented by others suggesting fraud or mistake, and followed by a prayer for specific affirmative relief that the deed of trust be reformed by excluding the homestead, etc., as well as for general relief.
Without objection, a jury was impaneled and certain formulated issues of fact submitted, whereby the jury was asked to decide (1) whether the husband understood the homestead was included in the trust deed; (2) whether Childers (what relation he bears to the controversy may only be guessed) understood the homestead was included; (3) and whether Hartman (what relation he bore to the controversy may only be guessed) understood the homestead was included at the date of the execution of the deed of trust. The jury having answered each and every one of these questions, yes, the court adopted its findings and rendered judgment for plaintiff. However, before so adopting the answers of the jury, Mrs. Pippin interposed a motion asking the chancellor to make a finding as to (1) whether she executed the deed of trust with knowledge that the homestead was included therein, and (2) as to whether she intended to join in any conveyance including the same, and (3) to ascertain and determine her rights without driving her to another action. This motion was overruled and "defendant then and there duly excepted at the time."
The defendants filed a joint motion for a new trial, which being also overruled, they took steps to perfect an appeal, incorporating into the record a bill of exceptions showing that the plaintiff introduced a complete chain of title from the Government to the husband; the deed of trust, aforesaid; the appointment of Hartman as substituted trustee; the trustee's deed executed by Hartman to plaintiff; and proved, aliunde, possession in defendants, damages, rents and profits.
The bill of exceptions disposes of the other evidence laconically, thus:
The bill of exceptions, moreover, shows that instructions were given for plaintiff and certain instructions refused for defendants, and that exceptions were taken and preserved.
On such record, where evidence indispensable to the just determination of the whole controversy is omitted, it would not only be impossible, but contrary to all precedent, for this court, however amiably disposed, to review the action of the learned trial court on the merits and correct errors, if any be found to exist. [Stern v. Foltz, 152 Mo. 560.]
Furthermore, the filing of an answer in a law case setting up equitable matter in pais, entitling the defendants to affirmative equitable relief and praying for such relief, under our form of practice, changes the case from one in law to one in equity. [Shaffer v. Detie, 191 Mo. 377, 90 S.W. 131, and cases cited.] And in equity cases, for reasons manifest, all the evidence should be brought up. [State ex rel. v. Jarrott, 183 Mo. 204, 81 S.W. 876; see Rule 7, of this court.] Inasmuch as these things are true, the merits are not legitimately here. It is true there is an exception to the general rule, viz., where the matter complained of, and sought to have reviewed, goes to the jurisdiction of the court, nisi, or to the right of such court to try the case at all, an equity case may be brought here without incorporating the evidence on matters not pertaining to the immediate purposes and object of the appeal and not essential to the determination thereof. [State ex rel. v. Gibson, 184 Mo. 490, 83 S.W. 472; State ex rel. v. Gibson, 187 Mo. 536, 86 S.W. 177.] But the case in hand does not fall within the exception.
However, the strict rule may be waived; because not only does respondent not invoke it, but the assignments of errors are in small compass and may be speedily disposed of, ex gratia. Those assignments are as follows:
The first and third assignments of error may be considered together.
Assuming, as said, that the case was changed from law to equity, it is an unbending rule that the chancellor need not call a jury to his assistance. [Ely v. Coontz, 167 Mo. 371, 67 S.W. 299.] If one be called, its office is not that of a trier of facts in the sense the term is used in a law case, but is advisory only. [Robinson v. Dryden, 118 Mo. 534, 24 S.W. 448; Hall v. Harris, 145 Mo. 614, 47 S.W. 506; Shaffer v. Detie, supra.] When the findings of a jury are made the chancellor may adopt them or not as he chooses. [Lewis v. Rhodes, 150 Mo. 498, 52 S.W. 11.] And whether he does the one or the other, is interlocutory and not a definite or substantial step in a legal sense. If he do adopt the advice of the jury, nevertheless the decree must stand or fall here on the evidence and on the equities arising therefrom, regardless of such advice -- he being the ultimate trier of facts below and the duty of this court being to hear the case anew, with proper deference to him on appeal. [Lewis v. Rhodes, supra; Courtney v. Blackwell, 150 Mo. 245, 51 S.W. 668.]
The mere form, then, of the chancellor's advice to the jury in...
To continue reading
Request your trial