Brown v. Essig

• Decision Date: 05 December 1927
• Docket Number: No. 16132.,16132.
• Citation: 1 S.W.2d 855
• Parties: BROWN v. ESSIG et al.
• Court: Missouri Court of Appeals

1 S.W.2d 855

BROWN v. ESSIG et al.

No. 16132.

Kansas City Court of Appeals. Missouri.

December 5, 1927.

Rehearing Denied January 23, 1928.

Appeal from Circuit Court, Linn County; J. E. Montgomery, Judge.

Action by Louis C. Brown against W. H. Essig and wife and the State Savings, Loan & Trust Company of Quincy, Ill. Judgment for plaintiff, and State Savings, Loan & Trust Company appeals. Affirmed.

Paul Van Osdol, of Brookfield, for appellant.

Thomas P. Burns, of Brookfield, for respondent.

WILLIAMS, C.

On the 10th day of January, 1927, plaintiff filed a petition in the office of the circuit clerk of Linn county, Mo. The gist of the action was to set aside a release and reinstate a mortgage and to make the lien of said deed of trust prior to the lien of a judgment in favor of the defendant, said State Savings, Loan & Trust Company. The deed of trust was first recorded on the 6th day of February, 1919, and on the 15th day of December, 1925, the defendant, said State Savings, Loan & Trust Company obtained a judgment against the defendant.

Louis C. Brown, respondent herein, subsequent to the date of the judgment, obtained by the said State Savings, Loan & Trust Company, took a conveyance of said property and the deed of trust was released. As a part of the transaction in releasing said deed of trust, a contract was executed to resell the property to the defendants, W. H. and Lucy Essig, for a consideration practically the amount secured by the deed of trust. Apparently it was not discovered until after the release that the said State Savings, Loan & Trust Company had procured a judgment and had a lien therefor upon the land contracted to be conveyed.

In January, 1927, this suit was brought and at the same time an action in attachment was commenced, based on the contract of sale to the defendants Essig. The pleading shows that this action in attachment was reduced to judgment prior to judgment in this suit.

The answer of the State Savings, Loan & Trust Company pleaded the prior attachment suit brought by Louis C. Brown against defendants W. H. Essig and Lucy Essig and alleged that by said action plaintiff had elected as his remedy the attachment suit and could not now maintain this action.

A motion was filed to strike out of the answer the petition of Louis C. Brown against W. H. and Lucy Essig in the attachment suit. This motion was sustained by the trial court. The case proceeded to judgment in favor of plaintiff, Louis C. Brown. The State Savings, Loan & Trust Company, after an unsuccessful motion for a new trial, has brought the case here on appeal.

The fact that plaintiff's deed of trust was released by mistake is not disputed, nor is it disputed that he had the right to have it restored, unless he had barred himself from this relief by his prior suit. This case is presented here upon the sole question as to the propriety of the court in sustaining the motion to strike from the answer allegations in regard to a former suit.

This presents to this court the question whether or not the attachment suit by Louis C. Brown is such an election of remedy as will preclude the said Louis C. Brown from maintaining an action to reinstate his deed of trust. The doctrine of election of remedies applies only when one remedy is inconsistent with another, and where one of the remedies has been evoked and followed to its ultimate end. Steinbach v. Murphy, 143 Mo. App. 537, 128 S. W. 207. As, for example, a purchaser could not sue for breach of contract and counting upon the same contract bring another suit for specific performance. These remedies are inconsistent. Otto v. Young, 227 Mo. 193, 127 S. W. 9.

The fact that the remedies are pursued against different persons is not conclusive. Commercial Bank of Boonville v. Central Nat. Bank of Boonville (Mo. App.) 203 S. W. 662.

In the case at bar, we must decide first whether or not the attachment suit brought by Louis C. Brown against defendants Essig is inconsistent with the relief asked in his petition in the present case.

The respondent here had three remedies. He could bring a suit by attachment, he could sue on the debts secured by the mortgage, or have his mortgage lien restored. There was nothing inconsistent so far as we see it in these three remedies. Thornton v. Pigg, 24 Mo. 249; Shackelford's Administrator v. Clark, 78 Mo. 491.

We think the case of Young & Co. v. Ruth et al., 55 Mo. 515, is a much stronger case than the one presented in the record in the case at bar.

We think, therefore, the court was right in sustaining the motion to strike out.

Judgment is affirmed.

FRANK, C., concurs.

PER CURIAM.

The foregoing opinion by WILLIAMS, C., is adopted as the opinion of the court...