Chance v. Jennings

• Decision Date: 12 February 1901
• Parties: CHANCE v. JENNINGS et al., Appellants
• Court: Missouri Supreme Court

61 S.W. 177

159 Mo. 544

CHANCE v. JENNINGS et al., Appellants

Supreme Court of Missouri, First Division

February 12, 1901

Appeal from Boone Circuit Court. -- Hon. Jno. A. Hockaday, Judge.

Affirmed.

W Gordon, Fry & Clay and H. S. Booth for appellants.

(1) It was error to allow the amended petition to be filed after the case was submitted. The amendment was made to overcome the errors made in the trial of the case and defendant had no opportunity to file an amended answer. It raised a new issue involving defendant's liability for the twenty-acre tract against which defendant had no opportunity to defend. (2) There is no equity in the case. Plaintiff freely made his contract, and it provided that if he paid the note when due "he shall be entitled to a deed herewith." If entitled to recover, plaintiff's recovery was limited to what he contracted for, the deed. The decree of the trial court finds the value of the land and renders a money judgment. It is not the province of courts to make contracts for parties. If the parties be competent to contract, and neither takes undue advantage of the other, the contract will not be disturbed. Tison v. Labeaume, 14 Mo. 198; Harrison v. Town, 17 Mo. 237. In the absence of fraud, mistake or undue influence, equity will not interfere. It was not claimed that the warranty deed was intended as a security for a debt, and the court erred in adjudging it a mortgage. Book v. Beasly, 138 Mo. 460; Cobb v Day, 106 Mo. 300. The effect of the decree in this case is an enforcement of a forfeiture for the non-performance of the contract. This a court of equity will not do. Sease v. Cleveland Co., 141 Mo. 488. At the most, under the evidence in this case, defendant has been guilty of a breach of contract, and plaintiff's remedy, if any, is an action for damages. Defendant is, and all the time has been solvent, and plaintiff, if injured, has an adequate remedy at law, and is not entitled to equitable relief. Humphreys v. Atlantic M. Co., 98 Mo. 542; Bank v. Moran, 138 Mo. 59. (3) Plaintiff asks to recover on the written contract indorsed on the note. A recovery on this contract can not be maintained because it is not sufficient to satisfy the statute of frauds on account of want of description of the land. Fox v. Courtney, 111 Mo. 147; Weil v. Willard, 55 Mo.App. 376. It is true the forty-acre tract is described in the quitclaim deed, but the twenty-acre tract is in no way connected with or referred to in the contract. Kelly v. Thuey, 143 Mo. 435. (4) Plaintiff is not entitled to relief because of his laches. Acquiescence for three years in a contract, with full knowledge of its nature, is evidence of a voluntary execution of it, which precludes equitable relief. Murdock v. Lewis, 21 Mo.App. 243; Landrum v. Bank, 63 Mo. 48; Schradski v. Albright, 93 Mo. 48; Bryant v. Hitchcock, 43 Mo. 527. (5) The quitclaim deed was not delivered in escrow. While there was some evidence that the said deed was to be placed in bank, as a matter of fact it was retained by defendant, and not delivered in escrow. 1 Devlin on Deeds (2 Ed.), secs. 312-315. (6) The entire transaction, conveyance of the land to defendant, note, contract and quitclaim deed originated in fraud on the part of the plaintiff to defeat his general creditors. A court of equity will not aid a fraudulent transaction. Southworth v. Hopkins, 11 Mo. 331; Rinehart v. Long, 95 Mo. 396.

Joe H. Cupp and Turner & Hinton for respondent.

(1) (a) No error was committed in permitting an amendment of the petition so as to conform to the proof as to the manner of the transfer of the twenty-acre tract to the defendant. This in nowise changed the cause of action or defense. Carr v. Moss, 87 Mo. 447; Welday v. Jones, 79 Mo. 170; Ins. Co. v. Smith, 117 Mo. 261. (b) The action of the trial court in allowing the amendment is not open to review, since the defendants neither excepted to the order permitting the amendment, nor assigned it as a ground for a new trial. Nichols v. Stephens, 123 Mo. 96; Childs v. Railroad, 117 Mo. 414; Holliday v. Mansker, 44 Mo.App. 465. (2) (a) This action is based solely on the idea that the conveyance to W. W. Jennings, though absolute in form, was intended simply as a security for a debt; in other words, that it was in effect a mortgage. Hence, when the court found that fact to be true, the right to reclaim the mortgaged property upon payment of the debt inevitable followed. Wilson v. Drumrite, 21 Mo. 325. (b) The quitclaim deed, in connection with the note and memorandum thereon, amounted to a defeasance, and characterized the transaction in this case as a mortgage. Copeland v. Yoakum, 38 Mo. 349; Sharkey v. Sharkey, 47 Mo. 543; Bender v. Zimmerman, 122 Mo. 194. These evidences conclusively stamped the transaction as a mortgage. Bobb v. Wolf, 148 Mo. 344; Book v. Beasly, 138 Mo. 455; Cobb v. Day, 106 Mo. 278; Reyburn v. Mitchell, 106 Mo. 378. (3) (a) The objection that the memorandum on the back of the note was not sufficient under the statute of frauds, is based on a total misconception of the action, which is not based on the redemption contract at all, but solely on the breach of trust or duty imposed by law on the defendant as mortgagee under this character of mortgage. No memorandum in writing is required to show that a conveyance, no matter what form it may assume, is in effect a mortgage. The denial of the trust by the grantee takes the case out of the statute. O'Neill v. Capelle, 62 Mo. 202; Cobb v. Day, 106 Mo. 278. (b) Even if the case had been within the statute of frauds, parol evidence would have been competent to identify the deed called for by the memorandum as the "deed herewith." Calloway v. Henderson, 130 Mo. 77; Bray v. Adams, 114 Mo. 486; Skinker v. Haagsma, 99 Mo. 208. (4) (a) If an estoppel was relied on in this case it ought to have been pleaded. Bray v. Marshall, 75 Mo. 327; Noble v. Blount, 77 Mo. 235; Hammerslough v. Cheatham, 84 Mo. 13; Avery v. Railroad, 113 Mo. 561; Throckmorton v. Pence, 121 Mo. 50. (b) The proof fails to disclose a single element of an estoppel in pais. Newman v. Hook, 37 Mo. 208; Spurlock v. Sproule, 72 Mo. 503; Noble v. Blount, 77 Mo. 235. (5) The plaintiff was not guilty of laches in failing to bring suit to redeem before the maturity of his note and before his possession had been disturbed. No change had taken place in the situation of the parties or the condition of the property. Spurlock v. Sproule, 72 Mo. 503; Turner v. Johnson, 95 Mo. 431. No question of laches can arise because the debtor was not in default at all. His note had not matured, and his interest had been promptly paid. He was not disturbed in his possession of the property; and he was lulled into security by the repeated assurances of W. W. Jennings that Jack Jennings would carry out the agreement.

OPINION

ROBINSON, J.

This is a proceeding in equity brought by the former owner of certain real estate in Boone county, against W. W. and S. J. Jennings, the general object and nature of which is to have a deed absolute on its face, declared a mortgage, and to obtain a reconveyance of a part of the property included therein, and to recover the excess in value above the debt, of a part of the property, which had been conveyed away by the grantee. The statement made by the counsel for the plaintiff seems to be full, clear and impartial, and we therefore adopt the following portion thereof.

"The petition alleged in substance that on the sixteenth day of February, 1894, the plaintiff executed and delivered to the defendant W. W. Jennings, his certain promissory note of that date for the sum of $ 937, due in three years, with eight per cent interest from date; and that at the same time, for the purpose of securing said note, he conveyed a forty-acre tract of land to said defendant by deed of general warranty, and also transferred to him a title bond under which he held a twenty-acre tract; and that contemporaneously therewith a written memorandum was indorsed on the back of the note providing that the plaintiff should have a reconveyance of the property upon payment of the debt and interest at or before maturity. That thereafter the defendant, W. W. Jennings, without plaintiff's knowledge or consent, conveyed the forty-acre tract, which was worth largely more than the debt, to the defendant, S. J. Jennings and that thereafter in 1896, S. J. Jennings wrongfully conveyed said tract to an innocent purchaser. That plaintiff had paid the annual interest on said note as the same became due, and before the maturity thereof caused the full amount of the note and interest to maturity to be tendered to the defendant W. W. Jennings, who refused to accept the same. The plaintiff, by his bill, which was filed before maturity of this note, offered to pay whatever the court might find due thereon, and this offer was renewed in open court at the trial.

"The answer of the defendant W. W. Jennings, which is rather out of the ordinary, consisted: 1st, of a general denial; 2d, of an allegation to the effect that the plaintiff had conveyed the property in controversy to him 'for the purpose and with the view of paying to him a note due him of $ 937, due three years after date with all interest due thereon,' but that such conveyance was made on the plaintiff's part for the purpose of defrauding his other creditors; 3d, of an admission that defendant had signed the following memorandum on the back of the note: 'Should E. B. Chance pay this note on or before due, and keep the annual interest paid each year, he shall be entitled to deed herewith. But if he fails to pay the annual interest when due, or pay entire note, said Jennings or his legal representatives may cancel deed and this note and declare the conveyance void and of no force,' coupled with an...