Federal Land Bank of St. Louis v. McColgan

• Citation: 59 S.W.2d 1052,332 Mo. 860
• Decision Date: 20 April 1933
• Docket Number: 32286
• Parties: Federal Land Bank of St. Louis, a Corporation, v. J. W. McColgan, Della P. McColgan and Reba McColgan, Appellants, Dexter National Farm and Loan Association, Defendant
• Court: United States State Supreme Court of Missouri

59 S.W.2d 1052

332 Mo. 860

Federal Land Bank of St. Louis, a Corporation, v. J. W. McColgan, Della P. McColgan and Reba McColgan, Appellants, Dexter National Farm and Loan Association, Defendant

No. 32286

Supreme Court of Missouri

April 20, 1933

Appeal from Mississippi Circuit Court; Hon. Frank Kelly Judge.

Affirmed.

George Munger and M. G. Gresham for appellants.

(1) In this case defendant, Reba McColgan, stands upon a claim to legal title; as against her, plaintiff is undertaking to quiet the title, and, as a fact has set up actual notice upon her part, upon which issue she is entitled to a trial by a jury and the court erred in failing to call a jury to try the facts. Art. 2, Sec. 28, Const. of Mo.; Sec. 948, R. S. 1929; Cullen v. Johnson, 29 S.W.2d 43; Koehler v Rowland, 205 S.W. 219; Kansas City v. Smith, 238 Mo. 335; Lee v. Conran, 213 Mo. 412. Parties are held grossly negligent, as regards reformation, in not discovering error in description until sale to bona fide purchaser. American Bank v. Bray, 11 S.W. 1016. Mistake in description in deed of trust will not be corrected as against bona fide purchaser. See same authority. The trust deed introduced in evidence described the lands as being located more than 100 miles west of the lands sought to be held by it and was not constructive notice to anyone. Land & Lumber Co. v. Franks, 156 Mo. 673. The plaintiff admits that the trust deed introduced in evidence is void unless corrected and they seek to correct the same and to quiet the title as to Reba McColgan, so far as the record and evidence in this case discloses, a bona fide innocent purchaser, for value. Such a deed imputes no notice. Cass County v. Oldham, 75 Mo. 50. No fraud is pleaded or squinted at, and surely they would not claim that they have made any showing in any way that Reba McColgan had any actual knowledge of the drawing of the deed. Wheeler v. Land Co., 193 Mo. 291; Robison v. Korns, 250 Mo. 676; Russ v. Hope, 265 Mo. 644; Clippard v. Kneibert, 226 S.W. 288; Stevens v. Stevens, 183 S.W. 573; Daugherty v. Daugherty, 254 Mo. 237; Hood v. Owens, 293 Mo. 779; Peters v. Schacner, 312 Mo. 609; Parker v. Vanhaser, 142 Mo. 621; Daugherty v. Daugherty, 204 Mo. 238; Gilmore v. Thomas, 252 Mo. 157; Leslie v. Carter, 240 Mo. 554; Peters v. Priest, 203 S.W. 1042.

C. S. Hale, Lovell George and Ray B. Lucas for respondent.

(1) Section 948, 1929, Missouri Revised Statutes is applicable to actions at law only, and does not apply to cases on the equity side of the court. Cullen v. Johnson, 29 S.W.2d 43, is no authority for the contention of appellants. Kansas City v. Smith, 238 Mo. 335, is a quiet title suit, which is an action at law, and no equity involved, consequently, a jury case. Quiet title suits are legal actions and juries are used and guaranteed in legal actions, but not so in equity cases. The case under consideration is not a quiet title suit and is not an action at law, but is strictly a proceeding in equity. Kroehler v. Rowland, 205 S.W. 219, is an action at law, and this case holds that an action at law cannot be converted into a suit in equity by answer, where no affirmative relief is asked by the answer. The converse is true here. The petition in this case is in equity. The answer cannot convert it to a suit at law. In this case, no jury was necessary. In fact, there was no question for a jury. This is a purely equitable proceeding and not an action at law. Only equity can reform a deed or correct a mistake. Even if there is a question of fact in an equity case, yet that does not give the parties the right to a jury trial. Sec. 949, R. S. 1929; Long v. Long, 141 Mo. 371; Schwickerath v. Cooksey, 53 Mo. 75; Tapley v. Herman, 95 Mo.App. 537; Memphis Loan & Building Assn. v. Arnett, 169 Mo. 201; Brim v. Fleming, 135 Mo. 597; Weary v. Wittmer, 77 Mo.App. 546. (2) Appellants here complain that respondent did not prove every allegation in its bill of complaint, or petition, and appellants further charge respondent with being grossly negligent in not discovering the error in description until the land had been transferred to Reba McColgan. The case, Land & Lumber Co. v. Franks, 156 Mo. 673. Our case is much stronger in that the first farm mortgage had all of the proper land numbers, and the range number (as number 12) and that was the only range 12 in Stoddard County. The case of Cass County v. Oldham, 75 Mo. 50. Respondent contends the first farm mortgage, which is plaintiff's Exhibit D, was properly recorded in Stoddard County, Missouri, and that the record of it was constructive notice to all subsequent grantees or mortgagees, and that it was not necessary to prove that Reba had actual notice or knowledge of said encumbrance. Sec. 3040, R. S. 1929; Hector v. Harrell, 248 Mo. 166; Shewalter v. Pirner, 55 Mo. 230; Scott v. Gordon, 109 Mo.App. 695; Gill on Titles (3 Ed.) sec. 142; Coney v. Laird, 153 Mo. 435; Gross v. Watts, 206 Mo. 394; Wolf v. Dyer, 95 Mo. 551; William v. Butterfield, 214 Mo. 412; Simms v. Thompson, 236 S.W. 876; Sicher v. Rambousek, 193 Mo. 128; Marvin v. Elliott, 99 Mo. 616; Noland v. Bank, 129 Mo. 57. A deed properly recorded is constructive notice in all cases, except where the description is void, because of uncertainty. The description here is not uncertain. (Same authorities as above). In describing real estate, the word East or the word West after the range number may be omitted without effecting the description, provided the instrument shows in what county the real estate is in. This is true, except in counties through which the Fifth Principal Meridian passes. Shewalter v. Pirner, 55 Mo. 218; Gill on Mo. Titles (3 Ed.) sec. 143. Whatever is false in a description may be disregarded as surplusage. Bray v. Adams, 114 Mo. 492; 18 C. J. 285; Shewalter v. Pirner, 55 Mo. 232. The description in the first farm mortgage is not void. It is amply sufficient to provide notice. The error is merely clerical. 18 C. J. 186; Cooley v. Warren, 53 Mo. 166; Jennings v. Brizeadine, 44 Mo. 332; 18 C. J. 188. If a deed states what was not intended, the mistake is mutual, no matter who drew it. Wilhite v. Wilhite, 224 S.W. 448; Wolz v. Venard, 253 Mo. 67; Kidd v. Brewer, 297 S.W. 960. (3) The court takes judicial cognizance of land descriptions. Myher v. Myher, 224 Mo. 637.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

Appellants, J. W. McColgan, Della McColgan, his wife and Reba McColgan appeal from a decree of the Circuit Court of Mississippi County, reforming the description of land in a mortgage and granting foreclosure. The debt secured was for the principal sum of $ 10,000 and at the time of the decree amounted with interest and other items to $ 15,250.72. The land involved is in Stoddard County, Missouri, from which county the cause went on change of venue to Mississippi County. The appeal was allowed to the Springfield Court of Appeals which court, for want of jurisdiction, transferred the cause to the Supreme Court.

The farm mortgage in suit was executed by J. W. McColgan and Della P. McColgan, his wife, to respondent, Federal Land Bank of St. Louis, to secure the payment of a certain promissory note executed by the mortgagors to the mortgagee in the principal sum of $ 10,000, payable in sixty-six equal semi-annual installments, of which sixty-five were for $ 350 each and the last was for $ 291.86 maturing on August 1, 1954. The mortgage was dated February 1, 1922, and was recorded in Stoddard County February 15, 1922. The note was of even date with the mortgage. The first count of the petition was for reformation of the description which was given in the mortgage as follows: "The west half (1/2) of the northeast quarter (1/4) and all of the southeast quarter (1/4) of section twenty (20), in township twenty-six (26) north, of range twelve (12) west of the Fifth Principal Meridian, and all of the northeast quarter (1/4) of section twenty-nine (29), in township twenty-six (26) north, of range twelve (12), west of the Fifth Principal Meridian; containing a total of four hundred (400) acres, more or less, situated in Stoddard County, Missouri." The mistake, which the petition charged to be mutual, was in the use of the word "west" after range 12. It was admitted at the trial that all of Stoddard County lies east of the Fifth Principal Meridian. Reba McColgan was joined as a defendant because, as respondent alleged in the first count, defendant, J. W. McColgan, executed and delivered to her on August 29, 1925, a quitclaim deed to the land actually mortgaged to respondent, that Reba was the daughter of J. W. McColgan, that the conveyance to her was without consideration and in the nature of a gift, that she had actual and imputed knowledge and constructive notice of her father's indebtedness to respondent and of the execution by him of the mortgage which he then believed to convey the identical land described in the quitclaim deed. Reformation of the description in the mortgage as against Reba McColgan as well as against the mortgagors was prayed.

The second count of the petition, which was for the foreclosure of the interest of all defendants in the land actually mortgaged, alleged that the note and the mortgage provided that, upon default in the payment of any installment, the loan in its entirety should, at the option of the payee, become immediately due and payable and bear eight per cent interest, and that, in the event of the failure of the mortgagors to pay any interest, taxes, liens, or assessments against the land or insurance premiums on the buildings, when due, the mortgage gave to respondent the like right and option to declare the entire debt due and payable. The second count further alleged that the mortgagors failed to pay state, county and drainage...