Edmonson v. Phillips

• Citation: 73 Mo. 57
• Parties: EDMONSON v. PHILLIPS, Appellant.
• Decision Date: 31 October 1880
• Court: United States State Supreme Court of Missouri

73 Mo. 57

EDMONSON

v.PHILLIPS, Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from New Madrid Circuit Court.--The case was tried before GEO. W. CARLETON, ESQ., sitting as Special Judge.

REVERSED.

This was a suit brought in the circuit court of New Madrid county by John Edmonson and Levina, his wife, against Murry Phillips, to have a lien declared and enforced against certain real estate for the amount of a certain note. The petition averred that on the 17th day of March, 1873, Amos R. Phillips executed and delivered said note to said Levina Edmonson; that said note was given for part of the purchase price of the said real estate; and that Amos R. Phillips was dead, leaving a will constituting said Murry his sole heir and executor. The answer was a general denial of “all the material averments of the petition,” and besides set up two special defenses: 1st, That the probate, and not the circuit court, had original jurisdiction of the cause; 2nd, That the note had been allowed against the estate of Amos R. Phillips in the probate court. There was no reply. The evidence offered at the trial showed that certain land had belonged to one Freeman; that Levina Edmonson was one of the heirs of Freeman; that the land was sold under a decree in partition among the heirs; that Amos R. Phillips became the purchaser; that the sheriff executed a deed to said Phillips; that Levina Edmonson never made any deed for the land; that Amos R. Phillips paid part of the purchase money in cash, and gave the note in question for the rmainder; that the note was payable to Levina Edmonson, and represented her interest in Freeman's estate. There was no evidence that Amos R. Phillips was dead, or had left a will appointing defendant his heir or devisee; and none to show that the land sold under the decree was the same as that described in the petition. Nor was the note offered in evidence. Plaintiffs had judgment, and defendant moved for a new trial and in arrest of judgment, on the ground that there was no evidence to support the finding, and that the petition did not state facts sufficient to constitute a cause of action. These motions were overruled, and defendant appealed.

Lewis Brown for appellant.

I.

SHERWOOD, C. J.

We do not regard the petition obnoxious to the objection that it does not state facts sufficient to constitute a cause of action, since it alleges that Amos R. Phillips executed and gave to the wife and co-plaintiff of Jno. Edmonson the note for $800; that the sum therein specified was part of the purchase price of a certain tract of the land, describing it; that Amos R. Phillips is dead; that by his will, since admitted to probate, he constituted defendant his executor and sole heir (devisee), and asks that the sum specified and interest be declared a lien on the land mentioned, and the same be sold in satisfaction thereof, and for other and further relief. It is true, the petition might have been more formal and specific; it might have alleged the wife's ownership or interest in the land, but these facts are necessarily inferable from the allegations of the petition. At the worst, the petition sets forth a cause of action defectively stated; not a defective cause of action, and if advantage was to be taken of any lack of formality in the petition in the particular referred to, it should have been done at an earlier stage of the proceedings. So much for this point.

II.

The objection is equally untenable that the husband should not have been joined as co-plaintiff. The statute expressly requires him to join in circumstances like those here presented, (2 Wag. Stat., p. 1001, § 8; R. S. 1879, § 3468;) and it makes no difference whether the property is the separate property of the wife or not; the husband must still be joined.

Besides, if the husband was improperly joined as coplaintiff, defendant's proper course was to have demurred. R. S. 1879, § 3515; Kellogg v. Malin, 62 Mo. 429.

III.

There is no doubt as to the jurisdiction of the circuit court. Such court is the possessor of chancery powers. It belongs to the ancient jurisdiction of chancery courts to enferce vendor's liens, and it is well settled that such jurisdiction is not lost by reason of the fact that the legislature has thought fit to confer jurisdiction of a similar nature on courts of law. The ancient jurisdiction in such cases will remain in full force unless prohibitory legislation be interposed. Real Estate Sav. Inst. v. Collonious, 63 Mo. 290, and cases cited. There is no such legislation in this State. Pages 93, 94 and 95, 1 Wagner's Statutes, do not contain anything which ousts the jurisdiction of the circuit court.

IV.

Nor did the allowance in the probate court of the note given for the interest in the land present any barrier to enforcing the vendor's lien. Both methods of procedure were open to the owner of the note, and she was confined to neither. In other words, the status of the holder of the note, her rights and her remedies were not diminished because holding an imperfect instead of a perfect mortgage, in which last case no doubt would exist that the holder of the note might not only have the same allowed in the probate court, but might afterward proceed to foreclose the mortgage also. The enforcement of a vendor's lien, an imperfect mortgage, is but analogous in its objects and incidents to the foreclosure of an ordinary mortgage.

V.

And we do not think the complexion of this case altered, so far as concerns the present proceeding, merely because the sheriff sold, in a partition suit, the interest of the wife in the land. She, as one of the heirs of her father, could doubtless have sold her interest, and would then have retained a vendor's lien for...