Carter v. Prior

• Decision Date: 30 April 1883
• Citation: 78 Mo. 222
• Parties: CARTER v. PRIOR et al., Appellants.
• Court: Missouri Supreme Court

78 Mo. 222

CARTER

v.PRIOR et al., Appellants.

Supreme Court of Missouri.

April Term, 1883.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

H. C. Lackland for appellants.

Edward S. Carter for respondent.

PHILIPS, C.

This is an action of ejectment to recover possession of sixty-one acres of land in St. Charles county. The defendant, Prior, being the tenant of John B. Allen, the latter was admitted to defend as the real party in interest.

From Allen's answer it appears that in 1868 he conveyed forty acres of this land to one Cone, who executed to Allen four notes and a deed of trust on the forty acres. Cone quit the country, abandoning the contract, and Allen entered into an arrangement with one Lobeck, by which, in case Allen became the purchaser of the forty acres at the anticipated trustee's sale, he would convey the same, together with the remainder of the sixty-one acres, to Lobeck. In July, 1869, Allen executed to Lobeck a warranty deed, acknowledged January 1st, 1870, to the sixty-one acres, taking in exchange four notes, aggregating $1,525, secured by deed of trust on the land. In December, 1869, Allen became the purchaser of the forty acresunder said trustee's sale. In December, 1869, Allen assigned to W. L. Carter two of the Lobeck notes in part payment of a note of Carter's, on one Pierce, the payment of which Allen had assumed. In February, 1875, there was a settlement of matters between Carter and Allen and Lobeck. Allen owed Carter, and Lobeck owed Allen and Carter. Lobeck gave Carter a note for $1,141.74, and executed to him a deed of trust on this land to secure it. There was then owing by Lobeck on the notes held by Allen $200. Carter died after this, in 1875. In 1877 Allen sold the forty acres under his deed of trust and bought it in. He was then in possession of the forty acres. In March, 1877, the plaintiff, the heir and devisee of W. L. Carter, foreclosed the second Lobeck deed of trust, and became the purchaser and obtained trustee's deed for the sixty-one acres. The answer alleged that W. L. Carter and plaintiff took with full notice of his unrecorded deed of trust.

The reply alleged that in the settlement, had in February, 1875, it was agreed and understood that Allen was to cancel his deed of trust for the unpaid $200 and look to the personal promise of Lobeck therefor, and that Carter should credit Allen with the amount of Lobeck's indebtedness to Allen less the $200. Accordingly, Carter gave Allen the credit, and Lobeck then made Carter the $1,141 note and deed of trust to secure it.

By agreement of parties, Joseph H. Alexander was selected to try the cause, to whom the trial was submitted, a jury being waived, verdict and judgment for plaintiff. Defendant appealed to the court of appeals where the judgment was affirmed, and the defendant has appealed to this court.

1. PRACTICE: special judge: waiver.

The defendant raised for the first time in the appellate court the objection that the special judge did not take the requisite oath before sitting in the trial of the cause. This question has been decided adversely to the defendant in Grant v. Holmes, 75 Mo. 109.

2. AN EQUITABLE DEFENSE TO A COMMON LAW SUIT.

The next objection alleged against the record proper is, that according to defendants' view, the answer presented an equitable defense, and the judgment in the case is defective in that it does not find the facts or declare the issues as found for the plaintiff, as in a chancery proceeding. If the position were tenable it is not perceived why defendant should complain, or of what avail it would be to him. It at most would be but an informal entry of judgment which this court could enter pro forma here, or remand the cause with directions to the circuit court to enter the formal judgment. But the defendant is under a misapprehension as to the office of the answer. It had not the effect to change the character of the action. It practically remained one at law in ejectment, in which either party would have been entitled to a jury. Wolf v. Schaeffer, 4 Mo. App. 372; affirmed, 74 Mo. 154.

3. A BILL OF EXCEPTIONS.

The remaining errors assigned are such as arose en pais in the progress of the trial, and, therefore, are not reviewable here, unless properly preserved in a bill of exceptions. Is there any bill of exceptions in contemplation of law in this record? Plaintiff's counsel contends that, as the bill of exceptions was not signed and filed until after granting the appeal, the court had no jurisdiction then to pass on the bill and make further record in the cause, and cites in support State v. Musick, 7 Mo. App. 597. This reference gives only an abstract of the point decided. What the state of facts in full was, upon which this declaration was based, does not appear. As an abstract principle, I cannot assent to it. The statute expressly allows the entire term in which to prepare and file the bill of exceptions, (R. S., § 3636;) and, therefore, it can make no difference that the appeal is granted...