Ennis v. Padgett

• Decision Date: 05 February 1907
• Citation: 99 S.W. 782,122 Mo. App. 539
• Parties: ENNIS v. PADGETT et al.
• Court: Missouri Court of Appeals

99 S.W. 782

122 Mo. App. 539

ENNIS v. PADGETT et al.

St. Louis Court of Appeals. Missouri.

February 5, 1907.

1. PLEADING—SEPARATE STATEMENT OF CAUSES—MOTION TO ELECT.

Where two or more causes of action which may, if stated in separate counts, be joined, are erroneously stated in one count, defendant's remedy is by motion to compel plaintiff to elect on which cause he will proceed.

2. SAME—IMPROPER JOINDER OF COUNTS—DEMURRER.

If counts which cannot properly be joined are set out in the same petition, defendant's remedy is by demurrer.

3. ACTION—JOINDER OF CAUSES.

Plaintiff, an administrator, alleged that at the death of his intestate, he was the holder of a note secured by a deed of trust which was unpaid, and that the deed was in full force and

effect; that the trustee and the debtor by fraud practiced on intestate, obtained possession of the note, and, after intestate's death, the trustee fraudulently entered a pretended release on the margin of the record of the deed of trust and acknowledged full satisfaction thereof and presented to the recorder a note claimed to be the note secured by the deed and, claiming that the defendant trustee was the owner thereof, procured its cancellation; that the note was never legally assigned to such trustee, and if any pretended assignment was made, it was without consideration and void, wherefore plaintiff alleged that "defendants were indebted to decedent's estate in the sum of the amount of the note and interest, and prayed that the satisfaction and release of the deed of trust be set aside," etc. Held, that such petition alleged a single cause of action in equity to set aside the satisfaction of the deed of trust and reinstate the lien, and for judgment on the note against the maker, and was not demurrable as joining a cause of action ex contractu against the maker of the note with a cause of action for conversion against the trustee.

4. CANCELLATION OF INSTRUMENTS—FRAUD—PLEADING.

Where, in a suit to cancel the satisfaction of a deed of trust, etc., fraud was not the gist of the action, it was no objection that the petition failed to sufficiently specify the facts constituting the fraud alleged.

5. SAME—STATEMENT OF FACTS.

Where a petition to set aside the fraudulent satisfaction of a deed of trust alleged that the trustee, after wrongfully obtaining possession of the note secured thereby, fraudulently represented himself to be the owner of the note, showed a note to the recorder, purporting to be the note secured, and by false representations obtained an entry of satisfaction on the record and cancellation on the note, etc., it sufficiently alleged the facts constituting fraud to sustain the petition on that theory.

Appeal from Circuit Court, Knox County; Chas. D. Stewart, Judge.

Action by John W. Ennis, as administrator or Hiram Hickman, deceased, against Thomas N. Padgett and others. From an order sustaining a demurrer to the petition, plaintiff appeals. Reversed and remanded.

A demurrer was sustained to plaintiff's petition, and he having elected to stand on his pleading, the final judgment from which this appeal was prosecuted, was entered against him. The action is by John W. Ennis, as administrator of Hiram Hickman, against Thomas N. Padgett, Lucy M. Padgett, his wife, and James Pence. The petition alleges the death of Hiram Hickman about July 6, 1904, and that plaintiff, as public administrator, took charge of the estate January 31, 1905. The petition then proceeds as follows:

"That at the date of the death of said Hiram Hickman, as aforesaid, he was the owner and holder of a certain promissory note, for the sum of six hundred and seventy-five ($675.00) dollars, in words and figures as follows:

                "`$675.         Plevna, March 8th, 1900
                

"`Three years after date I promise to pay to the order of Hiram Hickman, six hundred seventy-five * * * dollars, for value received, without any relief from valuation or appraisement laws, with interest at 8 per cent. per annum until paid.

                    "`[Signed]    Thomas N. Padgett.'
                

"That said note was duly executed by said defendant, Thomas N. Padgett, and delivered to said Hiram Hickman, and at the date of the death of said Hiram, was, together with the interest thereon, past due and unpaid, and was then the property of said Hiram Hickman, deceased; that in order to secure the payment of said above described note, the defendants, Thomas N. Padgett and his wife Lucy M. Padgett, did on said March 8th, 1900, execute, acknowledge and deliver to said Hiram Hickman, their certain deed of trust dated March 8th, 1900, and recorded June 5th, 1900, in Deed Book 49, at page 591, of the deed records of said Knox county, Missouri, whereby they conveyed to said defendant James Pence, as trustee therein, for the use and benefit of said Hiram Hickman, cestui que trust therein, the following described real estate in Knox county, Missouri, to wit: [Describing the land.]

"That at the death of said Hiram Hickman, as aforesaid, the said note was due and unpaid and said deed of trust was unsatisfied and in full force and effect, and was the property of said Hiram Hickman.

"That on or about July 1st, 1904, the said defendants Thomas N. Padgett and James Pence, entered into a conspiracy and fraudulent agreement to cheat, wrong and defraud said Hiram Hickman out of said debt, and by fraud, covin and deception, practiced upon him, said Hiram, obtained possession of said above described note and on the 8th day of July, 1904, and after said Hiram's death, the defendant, James Pence, in pursuance of said fraudulent agreement and conspiracy, and for the purpose of cheating and defrauding the estate of said Hiram Hickman, deceased, out of the debt represented and secured by said note and deed of trust, entered a pretended release on the margin of the record of said deed of trust, whereby he fraudulently and for the purpose of cheating, wronging and defrauding said estate out of said debt, acknowledged satisfaction in full for said deed of trust and...