Ebbs v. Neff

• Decision Date: 18 July 1930
• Parties: George P. Ebbs and Sallie A. Ebbs, Respondents and Appellants, v. Glenn E. Neff, Appellant and Respondent
• Court: Missouri Supreme Court

30 S.W.2d 616

325 Mo. 1182

George P. Ebbs and Sallie A. Ebbs, Respondents and Appellants, v. Glenn E. Neff, Appellant and Respondent

Supreme Court of Missouri

July 18, 1930

Appeal from Johnson Circuit Court; Hon. Robert M. Reynolds Special Judge.

Affirmed.

M D. Aber for plaintiffs.

(1) Upon the theory of the court's finding that the transactions between plaintiffs and defendant constituted a mortgage maturing February 1, 1924, plaintiffs were entitled to possession of the property at that time. Walcop v McKinney 10 Mo. 229; Meyer v. Campbell, 12 Mo. 603; Sutton v. Mason, 38 Mo. 120; Hubble v. Vaughan, 42 Mo. 138; Schanewerk v. Hoberecht, 117 Mo. 31; Bailey v. Winn, 101 Mo. 656; Wilson v. Reed, 270 Mo. 405. Being so entitled to possession, they were necessarily entitled to the rents of the property, as well as the right to protect from waste and deterioration. (2) And when the mortgagor after default refuses to render possession, the mortgagee is entitled pendente lite, to a receiver to protect the property, collect rents, pay taxes, and generally to preserve the property, and apply rents above taxes and upkeep to payment of the debt secured. Alderson on Receivers, pp. 608, 609, 610, 611, 618, 892; St. Louis Natl. Bank v. Field, 156 Mo. 306; Belding v. Meloche, 113 Mich. 223; Post v. Doerr, 4 Edw. Ch. 412; Bank v. Tallman, 31 Barb. 201; Hollenbeck v. Donnell, 94 N.Y. 342; Schreiber v. Carey, 48 Wis. 208; Sales v. Lusk, 60 Wis. 490; Gaynor v. Blewett, 82 Wis. 313. (3) In action for trial of title, the court has full jurisdiction, if asked for by either party, to hear and finally determine any and all rights, claims, interests, liens and demands whatsoever of the parties, or of any one of them and may award full and complete relief, whether legal or equitable as fully as the court might or could in any other or different action brought by the parties, or any one of them, to enforce any such right, claim, interest, lien or demand. Sec. 1970, R. S. 1919; Hauser v. Murray, 256 Mo. 84; Hunt v. Hunt, 307 Mo. 385. (4) Defendant's answer setting up an equitable claim that the transaction constituted mortgage, and plaintiff's reply, asking that in the event such claim was sustained, that they be awarded "such further orders, process or directions as may be efficient to enforce" any such rights as might be found to exist on behalf of defendant to the end that the judgment when so rendered should "be as effectual between the parties hereto as if rendered in any other different or separate action prosecuted therefor," vested the court with equity jurisdiction in the case. In such case where equity gets jurisdiction for any purpose, it is the duty of the chancellor to render full relief. Schwartzman v. Ins. Co., 2 S.W.2d 595; Martin v. Jones, 286 Mo. 574; Marston v. Catterlin, 290 Mo. 185; Hurst & Co. v. Trust Co., 291 Mo. 54; Williamson v. Frazier, 294 Mo. 320.

W. H. Allen, Prince & Beery and Nick M. Bradley for defendant.

(1) An action to quiet title is at law unless equitable relief is asked by one of the litigants. The pleading of an equitable defense does not convert the action into one in equity, unless specific equitable relief is prayed. As neither side of this controversy asked specific equitable relief, the action remained one at law, wherein defendant was entitled to a jury and the court was without authority to adjudge equitable relief. Citizens Trust Co. v. Going, 288 Mo. 505, 232 S.W. 998; Koehler v. Rowland, 205 S.W. 217; Peterson v. Larson, 285 Mo. 222, 225 S.W. 706; 21 C. J. 390; Toler v. Edwards, 249 Mo. 168; Lee v. Conran, 213 Mo. 404; Minor v. Burton, 228 Mo. 563. (2) The petition alleged fee simple ownership of the farm in plaintiffs. The reply expressly denied that plaintiffs' interest is or ever was that of equitable mortgagee and no special relief was prayed other than to quiet the title in plaintiffs. The answer averred that plaintiffs were not the owners but that defendant was the owner, and that that precise issue had been judicially determined against the plaintiffs and in favor of defendant in another litigation between the same parties and involving the same land. No special relief was asked by defendant other than to quiet title in him. The action of the court in declaring the warranty deed a mortgage and ordering sale was beyond the pleadings and the issues in the case and therefore coram non judice. Charles v. White, 214 Mo. 187; Schneider v. Rattan, 175 Mo. 684; Ecton v. Tomlinson, 278 Mo. 282, 212 S.W. 866; Gray v. Clements, 286 Mo. 100, 227 S.W. 113; Clark v. Mining Co., 209 S.W. 307; Kansas City v. Mullins, 200 Mo.App. 639, 209 S.W. 559; Rudd v. Rudd (Mo. App), 238 S.W. 541. (3) The court by its judgment discharged the receiver. This part of the judgment is correct and should stand. The action being at law, the court in the absence of special statutory authority, was without power to make the appointment in the first place. The order of discharge, was therefore, proper. Miller v. Perkins, 154 Mo. 629. (4) In a landlord summons proceeding under R. S. 1919, Sec. 6901, plaintiffs set up the claim that they owned the land in question and that defendant was wrongfully holding possession. Plaintiff offered as the basis of this claim the identical deed and contract used in the case at bar. The court found and adjudged they were not the owners, but that defendant was the owner and therefore rightfully in possession. Where a point has been actually and directly in issue in a former suit, and was judicially passed upon and determined, it cannot be again drawn in question in any future action between the same parties or their privies even though the causes of action in the two suits be different. Boas v. Branch (Mo.), 208 S.W. 86; La Rue v. Kempf, 171 S.W. 588; Case v. Sipes (Mo.), 217 S.W. 309; Murphy v. Barron (Mo.), 228 S.W. 497; Preston v. Chadwick, 91 Mo. 320; Tool Co. v. Spring Co., 146 Mo.App. 1; Driving Park v. Kansas City, 174 Mo. 425; 34 C. J. 915. (5) Defendant testified that the plaintiff, Mr. Ebbs, told him that he had the contract "fixed that way" so that he wouldn't "have to pay taxes on this $ 7,000." This testimony is uncontroverted. Any contract or device the purpose of which is to hinder the revenue officers in the collection of taxes is contrary to public policy and void. Drexler v. Tyrrell, 15 Nev. 114; Curran v. Downs, 3 Mo.App. 468; Andreas v. Andreas, 94 A. 417; City of St. Louis v. Meier, 77 Mo. 18. Any device or contract the purpose of which is to contravene public policy, is utterly void and of no force or effect. Downing v. Ringer, 7 Mo. 585; Tri State Amusement Co. v. Amusement Co., 192 Mo. 404; 13 C. J. 411; Booth v. Scott, 276 Mo. 1.

Ragland, J. All concur, except Gantt, J., absent.

OPINION

RAGLAND

This is an action to ascertain and determine the title to real estate, under Section 1970, Revised Statutes 1919. It was commenced by George P. and Sallie A. Ebbs, husband and wife, as plaintiffs, against Glenn E. Neff, as defendant. The petition, filed April 13, 1926 (caption omitted), was as follows:

"Plaintiffs are the owners in fee simple of the west half of the southwest quarter of section seven, township forty-five range twenty-six, except a strip three-tenths of a chain long off the north end and a triangular strip off the south end ten rods wide at west end and terminating at southeast corner of said 80 acres at a point on the south line, two and a half acres; the east half of the southwest quarter of said section seven and the west half of the west half of the southeast quarter of said section except the one acre tract conveyed by Nathan G. Engel to John Phillips by deed shown at Book 141, page 157, deed records of said county.

"Defendant is in possession thereof, subject to the receivership herein mentioned and claims to have some title, estate or interest in such property.

"Since April 9, 1924, there has been pending in a justice court and in this court on appeal therefrom an action between the parties hereto for the possession of said premises, in which the only controversy has been one of procedure; in the course of said proceeding a receiver was appointed by this court to receive and collect rents therefrom and to hold same subject to the orders of this court, which said action still pends upon the docket of this court, but upon which final judgment has been rendered adverse to plaintiffs' claims as to method of procedure, but not upon the merits of the controversy herein involved.

"That there is now in the hands of said receiver a large sum of money received and had from the rents and profits of said real estate. That the defendant is wholly insolvent, and not responsible to any judgment which might be rendered against him. That the plaintiffs are entitled to all of the said funds in the hands of said receiver, as the rents and products of and from their said land, and that if same pass into the hands of the defendant, they will be wholly lost to plaintiffs and result in their great and irreparable injury.

"That said land is liable to deteriorate and suffer injury if not cared for and looked after, and that it is to the interest of justice that the funds now in the hands of the said receiver acting under the orders of this court as aforesaid be kept and preserved together with such rents as may accumulate during the pendency of this action, and that therefor a receiver be by the court appointed whose further duty it shall be to protect the interests of the parties hereto impartially to the end that the same be preserved and the party ultimately found entitled to same have and keep the same, and to pay taxes thereon, and to keep improvements in condition and preserve and care for said land until rendition of final judgment and execution thereof in this...