Dent v. Dent

• Decision Date: 10 November 1942
• Docket Number: 38138
• Citation: 166 S.W.2d 582,350 Mo. 560
• Parties: W. H. Dent and Celia Dent, Appellants, v. John Dent, Bonnie B. Dent, Donald J. Lampson, and F. L. Riefesel
• Court: Missouri Supreme Court

166 S.W.2d 582

350 Mo. 560

W. H. Dent and Celia Dent, Appellants, v. John Dent, Bonnie B. Dent, Donald J. Lampson, and F. L. Riefesel

No. 38138

Supreme Court of Missouri

November 10, 1942

As Modified on Denial of Rehearing December 15, 1942.

Appeal from (Marion) Hannibal Court of Common Pleas; Hon Branham Rendlen, Judge.

Affirmed in part and reversed and remanded (with directions) in part.

May & May for appellants.

(1) Findings of fact and conclusions of law made by the trial court are not binding upon the reviewing court which hears the appeal de novo on the evidence. Presbyterian Orphanage v. Fitterling, 114 S.W.2d 1004; Patterson v. Patterson, 200 Mo. 335; Commission v Lambert, 161 S.W.2d 732; Bank v. Nichols, 202 Mo. 309. (2) Any defense going to show the extinguishment of a cause of action which once existed must be specially pleaded to avail a party as a defense. Bank v Stewart, 136 Mo.App. 34, and cases cited. (3) The answer was insufficient to authorize the introduction of testimony of payment. There was no evidence that plaintiffs expressly agreed that the $ 475 note should be accepted as payment of the antecedent debt and in order that the taking of a note shall operate as payment of a prior indebtedness there must be an express agreement to that effect. Bank v. Stewart, 152 Mo.App. l. c. 330; Farmers Bank v. Kendrick, 108 S.W.2d 62; Chorn v. Zolinger, 143 Mo.App. l. c. 195; Shotwell v. Monroe, 42 Mo.App. 669; State ex rel. Crider v. Wagers, 47 Mo.App. 431; McMurray v. Taylor, 30 Mo. 263. (4) In order for note to extinguish precedent debt clear manifestation of intention of both parties to that effect is essential. Hunter v. Hunter, 39 S.W.2d 359; Scheer v. Brooks, 65 S.W.2d 107; Book Co. v. Corbett, 162 Mo.App. l. c. 75. (5) The word "paid" appearing to have been written across the face of the two $ 200 notes was not on the notes when the same were surrendered to John Dent after his execution and delivery of the $ 475 note, and is no evidence of payment. Griffin v. Priest, 137 S.W.2d 685; Hunter v. Hunter, 39 S.W.2d l. c. 363. (6) Any discrepancy in the testimony of a witness testifying on different trials should be resolved in favor of the earlier testimony, the transaction then being fresher in his mind. 22 C. J. 443; Steel v. Railroad, 265 Mo. 97; Ellis v. Wolf, 55 S.W.2d l. c. 311; Mulcahey v. Brotherhood, 79 S.W.2d l. c. 765, and cases cited; Monroe v. Railroad, 249 S.W. 644. (7) The judgment for the crops grown on the real estate for 1941 of the value of $ 2100 was outside of the pleading and contrary to law. A decree must respond to the issues otherwise it is in error. Wolz v. Venard, 253 Mo. l. c. 86; Spindle v. Hyde, 247 Mo. l. c. 51-52; Newham v. Kenton, 79 Mo. l. c. 385. (8) Decree adjudging rights as to rentals, must be reversed because not sustained by parties seeking determination of parties' title and interest to real estate since the right to rentals was not incident to title. McCaskey v. Duffley, 78 S.W.2d 141. (9) The cross bill must be germane to plaintiff's bill and in the nature of a defense in order to give jurisdiction to found a decree thereon. Wolz v. Venard, supra; Fulton v. Fisher, 239 Mo. l. c. 130; Reppy v. Reppy, 46 Mo. l. c. 573; Second Baptist Church v. Beecham, 180 S.W. l. c. 1068. (10) The value of the crops was not their measure of damages, even if they had been put in possession before removal of the crops. Bechler v. Bittick, 121 S.W.2d 188. (11) The judgment for the value of the 1941 crops is not within the defendants' answer and counterclaim. (12) Homestead is not exempt from preexisting debts. Ingram v. Wilson, 125 F. 913; Sec. 615, R. S. 1939; Farra v. Quigley, 57 Mo. 284; Creathe v. Dale, 69 Mo. 41; Stanley v. Baker, 75 Mo. 60; Tennent v. Pruitt, 94 Mo. l. c. 149; Stinson v. Call, 163 Mo. l. c. 328; New Madrid Bank v. Brown, 165 Mo. l. c. 36; Berry v. Ewing, 91 Mo. 395; Broyles v. Cox, 153 Mo. l. c. 249; Lewis v. Barnes, 272 Mo. l. c. 410; Poplar Bluff Trust Co. v. Bates, 31 S.W.2d 93; Dant v. Harmon, 16 Mo.App. l. c. 208; Keeline v. Sealy, 257 Mo. l. c. 514; Crary v. Standard Inv. Co., 285 S.W. 462; Payne v. Fraley, 165 Mo. 191; First Natl. Bank v. Woelz, 197 Mo.App. l. c. 693; Butler v. Roer, 163 Mo.App. 283; Acreback v. Myer, 165 Mo. 685; Hudson v. Wright, 204 Mo. l. c. 426; Sperry v. Cook, 138 Mo.App. 299. (13) Occupancy must be coincident with recording deed. Barton v. Walker, 165 Mo. 25, l. c. 28. (14) Acceptance of new note did not extinguish the existing cause of action. Little River Drainage Dist. v. Houck, 137 S.W.2d l. c. 661; State ex rel. v. Smith, 121 S.W.2d 160; Hanson v. Duvall, 62 S.W.2d 733; Townsend v. Mosely, 134 S.W. 664; Bank v. Thompson, 132 S.W.2d 706; Lumber Co. v. Gibson, 178 Mo.App. 699; Harvester Co. v. Blair, 146 Mo.App. l. c. 379, 380. (15) In order to entitle a landowner to a crop which was grown on his land by another, landowner must strictly comply with legal requirement of obtaining possession of the land through abandonment or writ of restitution before the crop was matured and severed from the soil. Belcher v. Bittick, 121 S.W.2d 188; McAllister v. Lawler, 32 Mo.App. 91; Edwards v. Eveler, 84 Mo.App. 405.

Roy Hamlin, F. D. Wilkins and W. H. Juett for respondents.

(1) Where documentary evidence is not decisive and the issues of the case must be decided from facts and circumstances resting in parol and the inferences to be drawn from these facts this court may properly look for guidance to findings of fact by the trial judge. Conrad v. Diehle, 129 S.W.2d 870, 344 Mo. 811; Rhoads v. Rhoads, 119 S.W.2d 247, 342 Mo. 934; Reaves v. Pierce, 26 S.W.2d 611; Niehaus v. Madden, 155 S.W.2d 141. (2) The credibility of the witnesses is particularly important in this case. The rule giving deference to the findings of the trial chancellor should apply. Conrad v. Diehle, 344 Mo. 811, 129 S.W.2d 870; Franklin v. Moss, 101 S.W.2d 711; Niehaus v. Madden, 155 S.W.2d 141; Tichenor v. Bowman, 133 S.W.2d 324; Selle v. Selle, 88 S.W.2d 877. (3) Exemption of homestead applies to all causes of action after the filing of the deed by which the title is vested in the execution or attachment debtor and this is true even though the property may not have become a homestead until after the cause of action upon which the process is founded had accrued. The Chancellor found respondent's homestead became vested in him on July 11, 1932, the date the deed from his mother and her husband to respondent, John Dent, was recorded and at that time the respondent, John Dent, was not indebted to the plaintiffs. This finding is abundantly supported by the evidence. Sperry v. Cook, 247 Mo. 132; Keeline v. Sealy, 257 Mo. 498; Palmer v. Omer, 316 Mo. 1188; McCluer v. Virden, 70 F.2d 724; Sharp v. Stewart, 185 Mo. 518. (4) When a note is surrounded and a new one given, the new note is a new contract and not a continuation of the old one. Siemans & Halske Electric Co. v. Ten Brock, 97 Mo.App. 173; Cantley, Comr. of Finance, v. Plattner, 67 S.W.2d 125. (5) Respondent John Dent, by his amended answer to count one specifically pleaded, among other things, the plea of res adjudicata, setting up and pleading the judgment he had procured in the bankruptcy court in reference to his homestead, which finding and decree of the referee in bankruptcy was not appealed from and that same had been set off to him as his exempt property. The bankruptcy court having jurisdiction of the person and subject matter, after evidence was heard, made such a judgment. Appellants herein took no appeal from said judgment, and did not file their exceptions, and did not have the same transferred to the judge, and the time for the same has expired, so that said judgment is final, full and complete, and same is and constitutes a bar against the appellants and they are estopped from now asserting the contrary. Scanlan v. Kansas City, 28 S.W.2d 84; DeVore v. Armourdale State Bank, 128 S.W.2d 1074. (6) The adjudication of bankruptcy of John Dent and the setting off to him his homestead property by the referee in bankruptcy, unappealed from, becomes final. Blake v. Alswager, 215 N.W. 549, 55 A. L. R. 298, l. c. 303. (7) This is a suit in equity. The court acquired jurisdiction of the suit and of the parties, and had a right to determine all issues including the taking of an accounting of rents and profits of the land. Once acquiring jurisdiction of the subject matter, equity will retain it until complete justice is done between the parties, as presented by the pleadings. Morris v. Scott, 30 S.W.2d 71, 325 Mo. 711, 71 A. L. R. 290; Cooper v. Cook, 148 S.W.2d 512, 347 Mo. 528; Lortz v. Rose, 145 S.W.2d 385, 346 Mo. 1212. (8) The Chancellor correctly found that respondent was entitled to a judgment for the value of the crops for the year 1941. Stephens v. Steckdaub, 202 Mo.App. 392; Baker v. McInturff, 49 Mo.App. 505; Davis Bros. v. Callahan, 66 Mo.App. 168. (9) Appellants are now estopped by their own action and conduct and by the judgment of the Circuit Court of Pike County, Missouri, in now asserting that John Dent owes them in two other notes, given at a time prior to January 1, 1933. 31 C. J. S., p. 193, and cases cited.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

Action to set aside two deeds to about 100 acres of land in Pike County, and to cancel a deed of trust on the land and to determine title. The cause was filed in Pike County, but went on change of venue to the Hannibal Court of Common Pleas, where the finding and judgment went against plaintiffs and in favor of defendants in plaintiffs' cause to set aside and to cancel. And the court found that defendants John and Bonnie B. Dent were the owners of "a life estate in the real estate" involved, and that these defendants had a homestead in said land. Als...