Freeman v. Wilkerson
| Decision Date | 31 August 1872 |
| Citation | 50 Mo. 554 |
| Parties | CAVIL M. FREEMAN AND WIFE, Respondents, v. JOEL H. WILKERSON, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Linn Circuit Court.
Geo. W. Easley, for appellant.
The instructions asked by the appellant should have been given. The respondents' action was for the recovery of money only, and was an action at law, and in no sense an equity proceeding. (Wagn. Stat. 1040, § 12.) The amended answer asked no affirmative relief. It was defensive, and would not have enlarged the relief to which the respondents were entitled under their petition. The rule in equity cases is that no decree can be made not prayed for in the petition. (Evans v. Gibson, 29 Mo. 223; Bailey v. Ryder, 10 N. Y. 363; Flint v. Jones, 5 Wis. 424; Koehler v. Iron Co., 2 Black, 715.)
Burgess & Mullins, for respondents.
I. The judgment and decree rendered by the court below were authorized by the pleadings and the evidence. The plaintiffs were entitled to such relief as the court declares to be consistent with the case made by them and embraced within the issues, without regard to the prayer of the petition. (Wagn. Stat. 1054, § 12; Ashby v. Winston, 26 Mo. 213; Northcroft v. Martins, 28 Mo. 470; Easley v. Prewitt, 37 Mo. 361.) And the decree was authorized by defendant's answer, if predicated on that alone. (Sto. Eq. Pl. 435, § 1503.)
II. The point made by counsel for appellant, that the court below proceeded irregularly in rendering judgment against defendant for the value of the property, to be enforced by execution, in the event of the failure of defendant to convey the property to Mrs. Freeman, is not well taken. That objection comes too late. It should have been made in the court below.
The plaintiffs are husband and wife, and brought this suit for the purchase-money of real estate, which the petition alleges belonged to the wife, for her sole and separate use, and that she sold it to defendant for $1,500, and at his request made the deed to one Stephen C. Smith.
The defendant set up an equitable defense, charging that this real estate had been bought with the husband's money, while the defendant was liable for him for large amounts, and that the object of this transfer was to raise money to secure the defendant; that after the sale to Smith, the defendant took a conveyance of the property from Smith to himself, and still holds it, to indemnify himself; and if the court should find that he does not so hold it, then he holds it in trust to be conveyed to such person as the court may direct.
Upon the hearing of the case, after the evidence was through, the defendant asked several declarations of law, which were refused, and none were made. The court found from the evidence that the defendant was a trustee, holding the property for the...
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