Davenport v. Timmonds

• Decision Date: 12 June 1911
• Citation: 138 S.W. 349,157 Mo.App. 360
• Parties: WALTER K. DAVENPORT et al., Appellants, v. H. W. TIMMONDS, Respondent
• Court: Missouri Court of Appeals

138 S.W. 349

157 Mo.App. 360

WALTER K. DAVENPORT et al., Appellants, v. H. W. TIMMONDS, Respondent

Court of Appeals of Missouri, Springfield

June 12, 1911

Appeal from Dade Circuit Court.--Hon. Edward J. White, Special Judge.

Judgment reversed and cause remanded. (with directions).

A. J Young for appellants.

(1) Plaintiffs, being interested in the property, paid the incumbrance to protect their own interest, and were thereby entitled to be subrogated to all the rights of the holder of the incumbrance so paid. Evans v. Halleck, 83 Mo 376; Norton v. Highleyman, 88 Mo. 621; Bunn v Lindsay, 95 Mo. 258, 27 Am. and Eng. Ency. Law (2 Ed.) 203; Capen v. Garrison, 193 Mo. 343. (2) Subrogation is a doctrine of equity jurisprudence. It does not depend upon privity or contract, express or implied, except insofar as the known equity may be supposed to be imported into the transaction, and thus raise a contract by implication. 27 Am. and Eng. Ency. Law (2 Ed.) 203; Capen v. Garrison, 193 Mo. 341. (3) Defendant having acquired title to his land by quit claim deed and his immediate grantor by sheriff's deed, they are not innocent purchasers and take the same subject to all the equities between the original parties. Southern Bank v. Nichols, 202 Mo. 321; Turner v. Edmonston, 210 Mo. 421. (4) Plaintiffs did not become principals in the common debt of $ 1400 created by J. W. Davenport, not having assumed or agreed to pay the same either in writing or otherwise, nor was such assumption or agreement incorporated in the deeds delivered to them. Hefferman v. Weir, 99 Mo.App. 301; Keifer v. Shacklett, 85 Mo.App. 449; Hicks v. Hamilton, 144 Mo. 495.

H. W. Timmonds for respondent.

(1) As there does not appear to have been a final judgment, nor judgment of any kind, rendered the appeal will be dismissed. R. S. 1909, sec. 2038; Mills v. McDaniels, 59 Mo.App. 331; Halloway v. Halloway, 97 Mo. 639; State ex rel. v. Turner, 113 Mo.App. 53; Bick v. Umstattd, 137 Mo.App. 270; Ins. Co. v. Hurst, 129 Mo.App. 627. (2) The leave to file a bill of exceptions and an extension of time for filing the same must be shown by the record proper. The statement that leave was granted appellants to file a bill of exceptions and that the time for filing the same was extended will not suffice, even if set out in the bill of exceptions. Ins. Co. v. Hurst, 129 Mo.App. 627; Bower v. McDaniel, 198 Mo. 317; Shenwell v. McKinney, 214 Mo. 692. (3) The indebtedness was one debt of J. W. Davenport, evidenced by one note and secured by one mortgage. The plaintiffs and their brother, Joseph T. Davenport, in assuming the payment of this debt of their father, became the principals therein and their father their surety on the note. Nelson v. Brown, 140 Mo. 580; Bensieck v. Cook, 110 Mo. 173; Fender v. Hazeltine, 106 Mo.App. 31; Launeier v. Halleck, 103 Mo.App. 116; Regan v. Williams, 88 Mo.App. 577; VanMeter v. Poole, 130 Mo.App. 433. (4) The right of subrogation will not exist between parties who are equally bound, as, for example, co-partners, co-obligors and co-contractors, except by virtue of a special contract. Bispham's Pr. of Eq. (5 Ed.) sec. 337. (5) Contribution will not lie in this case, for the debt is not that of the defendant and no obligation on his part exists to pay the debt paid by the principals. 7 Am. and Eng. Ency. Law 338; Bispham's Pr. of Eq., secs. 328, 330. (6) An equitable lien cannot be created in the case at bar because the payment made by the plaintiffs was not made at the request of instance of the defendant nor was it his debt and he was under no disability. Capen v. Garrison, 193 Mo. 350.

OPINION

GRAY, J.

The respondent challenges the sufficiency of appellants' abstract. It is claimed the abstract shows no final judgment. The abstract states: "The said special judge, after filing his statement of facts and written opinion as to the law in said case, caused the following judgment entry to be made: 'Now at this day the above cause coming on to be heard, there appearing the plaintiffs and defendant in their own proper persons and by attorneys, and both parties announcing ready for trial, the issues submitted to the court upon competent testimony, and the court having seen, heard and understood all the matters and things at issue between plaintiffs and defendant and the court having filed his written opinion and statement of his findings of the facts and also his declarations of the law applicable to this case, doth find that plaintiffs' bill should be dismissed without prejudice, and that the defendant have and recover of and from the plaintiffs his costs in this behalf expended.'" In due time a motion for new trial was filed, and the same was overruled and the cause appealed to this court. While the judgment is not exactly in the usual form, there is enough to show the court dismissed the plaintiffs' bill and rendered judgment against them for costs.

The other objections to the sufficiency of the record are based upon the fact that the abstract of the record proper does not show orders extending the time for filing the bill of exceptions and ordering the same filed. When the abstract, including the bill of exceptions, is read, it appears that the judge did extend the time by order, and that the bill was filed within the time granted.

The respondent does not allege, as required by the rules of this court in such cases, that the order was not made extending the time, or that the bill of exceptions was not filed within the time allowed by the judge. There are numerous cases by the other appellate courts of the state holding that the abstract of the record proper must show these things. But this court has adopted a more liberal rule. Our rule 15 provides that in all cases wherein there are statements or other evidence in the printed abstract of the record, including the bill of exceptions, tending to show the filing of the bill of exceptions, and that the action of the court on the same was taken in proper time, such abstract shall be deemed sufficient, and in motions challenging the sufficiency of the same as to such matters, it will not be sufficient to state that the abstract does not show such steps were taken or in proper time, but the motion must especially allege that as a matter of fact, such steps were not taken at all, or not in proper time, as the case may be, and thereupon, the court shall determine the matter. The objections to the abstract will be overruled.

This cause was tried before the Honorable Edward J. White, special judge, and the facts of the case are fairly determined in his written opinion as follows:

"Plaintiffs are the sons and daughter of J. W. Davenport, who, in January, 1900, as the owner of a three hundred acre tract of land in Dade county, Missouri, gave a deed of trust on said land to secure a debt of $ 1800, due to the Citizens Savings Bank and Trust Company.

"Said J. W. Davenport was the maker of the note which this deed of trust was given to secure, and something like a year after the negotiation of this loan, he paid the sum of $ 400 on the debt, and had a portion of the land covered by the trust deed, released.

"In October, 1905, he concluded to divide the two hundred acres, remaining charged with the balance of this debt, between four of his children, the plaintiffs and another son, Joseph T. Davenport.

"To perfect this object, he and his wife made, executed and delivered to each of his said children, a separate warranty deed, to separate tracts of fifty acres each, and each of these deeds were placed of record, and recited a consideration of $ 350, but nothing was paid the grantors, and the grantees, by verbal agreement, each assumed and agreed to pay one-fourth of the debt of $ 1400 then standing against the whole of said tract of two hundred acres.

"The fifty acres so conveyed to Joseph T. Davenport was sold at Sheriff's Sale in November, 1907, and purchased by M. J. Drummond, who in February, 1908, conveyed said fifty acres by quit claim deed to the defendant.

"In January, 1910, the plaintiffs made a new loan on their one hundred and fifty acres of this land, and took up the note and deed of trust on the two hundred acres, and they released all the land from the lien of the old deed of trust except the defendant's fifty acres, and the object of this suit is to charge this fifty acres with one-fourth of the remainder of this original debt, with interest, or the sum of $ 396.25."

The trial judge found the issues for the defendant, thereby holding that plaintiffs were not entitled to a lien on the defendant's land for any part of the mortgage debt paid by them. The plaintiffs have appealed to this court.

Subrogation is based on rules of equity. It is a creation of the law whereby substantial justice may be accomplished, regardless of contract relation. In the recent case of Holland Banking Co. v. See, 130 S.W. 354, we had occasion to review the authorities generally on the question of subrogation, and we made the following quotations:

"Subrogation is a doctrine of equity jurisprudence. It does not depend on privity or contract, express or implied, except in so far as the known equity may be supposed to be imported into the transaction. It is a consequence which equity attaches to certain conditions. The parties may not have contracted for it either expressly or by legal implication, but if, in the performance of that contract which they did make, certain conditions have resulted which make it necessary for equity to interpose its authority in this respect it will do so, provided that in so doing it will violate no law and not alter the contract."

"The doctrine of subrogation has kept pace with the growth of the equitable principles until at the present time it exists in all its pristine...