Colin v. Moldenhauer

• Decision Date: 21 March 1936
• Docket Number: 33337
• Parties: Amiel H. Colin, a Minor, by his Guardian and Curator, Fred W. Meredith, and Floyd B. Colin, v. Emma Moldenhauer, Louise Kluender, Arthur Popp, George W. Mecker, the First National Bank of Perryville, a Corporation, Respondents, Clara Endres, Appellant
• Court: Missouri Supreme Court

92 S.W.2d 601

338 Mo. 827

Amiel H. Colin, a Minor, by his Guardian and Curator, Fred W. Meredith, and Floyd B. Colin, v. Emma Moldenhauer, Louise Kluender, Arthur Popp, George W. Mecker, the First National Bank of Perryville, a Corporation, Respondents, Clara Endres, Appellant

No. 33337

Supreme Court of Missouri

March 21, 1936

Appeal from Perry Circuit Court; Hon. B. H. Boyer, Judge.

Affirmed.

J Grant Frye for appellant.

(1) The parties against whom Clara Endres sought reformation were all claiming as heirs-at-law of John Gerstacker and were not bona fide purchasers for value, in which instance Clara Endres was entitled to have the deeds reformed, as she in fact was the equitable owner of the land described as Tract 3 in the petition. Martin v. Nixon, 92 Mo. 26, 4 S.W. 503; Rhodes v. Outcalt, 48 Mo. 367; 53 C. J., pp. 982 995. (2) The intent of Alice Miget and John Gerstacker is not determinable from the language of the deed only, but since they made a physical survey of the land, such fact should be considered on the question of reformation of the deed. 18 C J. 277. (3) Evidence is admissible to identify lands inadequately described, or to include lands mistakely left out of a deed, as against persons taking voluntarily or with notice. 40 C. J., pp. 401, 475, 523, 554. (4) Clara Endres alleged in Sections II and III of her answer and cross-bill not only the mistake in leaving out a part of the land in the deed of her trust and her purchase, but she alleged that she intended to buy all the lands which she thought was conveyed by this deed of trust and which the parties to the deed of trust thought was conveyed, in which instance she is entitled to reformation. 53 C. J. 978. (5) Clara Endres had the right, even after foreclosure, to have the deeds reformed and the descriptions of the land conform to the understanding of the parties to the original deed of trust, all necessary and interested parties being in court. Quivey v. Baker, 37 Cal. 465; Buse v. Moraga, 130 Cal. 586, 63 P. 1081; Greeley v. Decottes, 24 Fla. 475, 5 So. 239; Hecht v. Osteen, 37 Fla. 427, 20 So. 549; Provost v. Rebman, 21 Iowa 419; Blodgett v. Hobart, 18 Vt. 414; Parker v. Starr, 21 Neb. 680, 33 N.W. 424; First Natl. Bank v. Wentworth, 28 Kan. 183; German Mut. Ins. Co. v. Grimm, 32 Ind. 249, 2 Am. Rep. 341; Waldron v. Leston, 15 N.J.Eq. 126; Lester v. Johnson, 137 Ala. 194, 33 So. 880; Greer v. Watson, 170 Ala. 334, 54 So. 487; Fisher v. Dent, 259 Mo. 86, 167 S.W. 977.

Samuel Bond and R. D. Moore for respondents.

(1) "The general theory of our appellate system is that no one should be permitted to invoke the power of an appellate tribunal to review the rulings and actions of a trial court, unless proper opportunity has been offered to the trial court itself to review and revise its own rulings and decisions. This is done by a motion for a new trial, in arrest, to set aside an order, judgment, or decree or by some other appropriate motion." Finkelnbury App. Practice (2 Ed.), p. 45. Court will not review alleged errors unless called to its attention in motion for new trial. K. C. Natl. Bank v. Landis, 34 Mo.App. 441; Sec. 1061, R. S. 1929. (2) In this State, a purchaser under a deed of trust, cannot come into equity, requesting that other property, omitted from description in deed of trust be subjected to his purchase on the ground of mistake. Schwickerath v. Cooksey, 53 Mo. 75, which case is still living law, as the same was cited, on another question in Federal Land Bank v. McColgan, 332 Mo. 860, 59 S.W.2d 1052; Haley v. Bagley, 37 Mo. 365.

OPINION

Tipton, P. J.

The Circuit Court of Perry County, Missouri, entered a judgment decreeing partition in two tracts of land located in that county. This appeal involves only the second tract of land consisting of 17.16 acres which belonged to John Gerstacker during his life; that the defendants, Emma Moldenhauer, Louise Kluender, and the appellant, Clara Endres, were Gerstacker's children and the respondents. Amiel Colin and Floyd Colin were his grandchildren by a deceased daughter.

The appellant's amended answer and cross-bill were in three sections. Section I, after admitting the allegations in the petition in reference to tract one of the land, proceeded to answer as to the tract of land in question as follows: "Further separately answering, this defendant says that she owns absolutely in fee simple the third tract (the tract in dispute) described in plaintiffs' petition, said tract consisting of 17.16 acres in the East Fractional Half of Section 19, Township 36, Range 12, and more fully described in said petition.

"Further separately answering, this defendant denies each and every other allegation in said petition contained."

The second section of appellant's answer alleged that the "only lands owned by John G. Gerstacker, heretofore and involved in this litigation were (here the legal description of the land was set out which included a 40-acre tract and the 17.16-acre tract referred to in the first section of her answer.)" She then alleged that on February 11, 1928, Gerstacker took one Alice Miget on these lands and showed her the land and the boundaries and thereupon agreed to give her a deed of trust thereon to secure the payment of a $ 2500 promissory note and by their agreement they meant to convey the entire 57.16-acre tract of land; that Gerstacker and Miget jointly selected a scrivener to prepare the deed of trust, and in preparing the deed the scrivener by mistake omitted the 17.16-acre tract of land. She then alleged that when the note secured by the deed of trust came due, Gerstacker defaulted and Miget, the holder of the note, caused the land to be sold under the terms of the deed of trust. The sale was held September 30, 1930, and was bought by this appellant for the sum of $ 1600. That the advertisement of the foreclosure and the trustee's deed to her were the same description as that in the deed of trust. She further stated that when she bid at the sale she thought she was buying the entire 57.16-acre tract of land, and if she had not thought so she would not have purchased this land at the trustee's sale. All the deeds mentioned were duly recorded.

Section III of the appellant's answer was a cross-bill and realleged all the facts set out in Section II of her answer, and the prayer of the cross-bill was that all the deeds be reformed and corrected to give the true intention and agreement of the parties thereto, and to bar the claims of the plaintiffs and the other defendants.

The court sustained a demurrer to Sections II and III of her answer and cross-bill. She refused to plead further and plaintiff filed a reply to Section I of appellant's answer. The court found from the pleadings that, "there being no issue to try, the matter being determined on the pleadings and the Record herein," and that the parties to this litigation were tenants in common and ordered the land sold by the sheriff according to law.

The principal controversy in this case is whether or not Section II constituted any defense to respondents' petition and if Section III alleged a cause of action for reformation of the deeds.

The question for our determination is: can a purchaser, who is not a party to a deed of trust, purchase a tract of land at a trustee's sale, and then in a suit in equity be invested with title to land not described in the original deed of trust, the advertisement, or the trustee's deed, where the purchaser contends that the description in the deed of trust does not include all the land intended by the parties to be included in the deed of trust,...