Givens v. Thompson

• Decision Date: 06 June 1892
• Parties: Givens, Plaintiff in Error, v. Thompson et al
• Court: Missouri Supreme Court

19 S.W. 833

110 Mo. 432

Givens, Plaintiff in Error, v. Thompson et al

Supreme Court of Missouri

June 6, 1892

Error to St. Louis City Circuit Court.

Affirmed.

W. W Fry for plaintiff in error.

(1) A demurrer will not lie to a bill on the ground of res adjudicata. Such defense must be raised by answer. Kelly v. Hurt, 61 Mo. 466. A former judgment is not necessarily conclusive to all the facts arising on the record, and parol evidence is admissible to show whether a question was determined in a former suit. Hickman v Mexico, 58 Mo. 61; Armstrong v. St. Louis, 3 Mo.App. 100; Spradling v. Conway, 51 Mo. 51. Therefore, whether the matter complained of has been adjudicated must be determined on answer, and defendants' demurrer should have been overruled. (2) As to the second cause of demurrer, it appears that plaintiff did accept defendants' offer to allow plaintiff to redeem on their terms and in writing. Ulrica v. Papin, 11 Mo. 43. (3) Whether plaintiff is entitled to recover under his petition is strictly a question of fact, and the evidence must be heard to properly determine it. 2 Wait's Practice, p. 452. (4) It was error to sustain the demurrer. Story's Equity Pleadings [10 Ed.] secs. 448, 449, 456 790-793, and note; Brooks v. Hewett, 3 Ves. 255; Tesson v. Tesson, 11 Mo. 274; Ulrica v. Papin, 11 Mo. 43; Jones v. Paul, 9 Mo. 293.

D. T. Jewett for defendants in error.

A demurrer to the plaintiff's petition was the only proper pleading that defendants could make. Our statute provides that the defendant may demur when it appears from the petition or bill that the plaintiff has no cause of action. This practice is fully sustained by the authorities. 2 Herman on Estoppel & Res Adjudicata, secs. 1276, 1277; McFarland v. Rogers, 1 Wis. 452; Trimble v. State, 4 Blackf. 437; Beckett v. Bradley, 7 Man. & Gran. 994; Collins v. Mitchell, 5 Fla. 369.

Brace J. Barclay and Macfarlane, JJ., not sitting.

OPINION

Brace, J.

This action is brought here by writ of error, to reverse the judgment of the circuit court of St. Louis county sustaining a demurrer to the plaintiff's petition, which was in two counts; the second count being substantially the same as the first, it will be necessary to set out only the first count of the petition and the demurrer thereto.

The first count of the petition is as follows:

"Plaintiff states that heretofore, to-wit, August 9, 1873, the St. Louis Marble Company, a corporation, was the owner and in possession of the following described real estate in the county of St. Louis, state of Missouri, to-wit: The southwest quarter of the northeast quarter, and the northwest quarter of the southeast quarter, and the northeast quarter of the southwest quarter of section number 3, and also the south half of the northeast quarter, the southeast quarter, the northwest quarter and the southwest quarter of section 10, all in township 44 north, range number 3 east, containing together seven hundred and sixty-seven and eighty-hundredths acres. That on said ninth of August, 1873, said company made, executed and delivered to trustees a certain deed of trust to secure a certain indebtedness of said company. That said debt so secured was not paid at maturity, and, at the request of the holder of said debt, the trustee advertised said property for sale pursuant to the terms of said deed. The plaintiff being an indorser for said company in a large amount, and said property being worth many times the amount of the debt which it secured, plaintiff made an agreement with one William Groshon to buy, and said Groshon did buy said property and did on the twenty-first of April, 1874, receive a deed therefor, in his own name, but on the further understanding and agreement that he, said Groshon, was to hold said property as security for the money so paid by him therefor, but which money was to be a loan by said Groshon to plaintiff, and that whenever said Groshon wanted the money plaintiff was to repay the same and take the property. That afterwards said Groshon demanded his money, and plaintiff borrowed from defendant Thompson, in May, 1874, the sum of $ 7,140, and with said money paid said Groshon the sum paid by him for said property. That, in order to secure the said Thompson said $ 7,140, plaintiff caused said Groshon to make a direct conveyance of said property to said Thompson, upon the understanding and agreement that said Thompson should hold the same as security for said $ 7,140, which plaintiff by his certain promissory note of date May 11, 1874, promised to pay said Thompson in ninety days after date. That thereafter said Thompson loaned plaintiff further sums of money, upon the same security, so that on August 10, 1874, the total debt amounted to $ 7,600, and thereafter said Thompson loaned plaintiff further sums of money, upon the same security, taking plaintiff's notes therefor so that in July, 1876, plaintiff owed said Thompson the sum of $ 15,000.

"That, immediately upon said Groshon buying said property as aforesaid, plaintiff took possession thereof, and, when the same was transferred to defendant Thompson as aforesaid, plaintiff still remained in possession thereof and used and controlled the same as his own, without being liable for rents, issues or profits in pursuance of his said agreement with said Thompson that he, said Thompson, should hold the legal title thereto only as security for said loans. That on the sixth of February, 1875, plaintiff was very ill, having been stricken with paralysis, and was daily expected to die, was in no condition to transact business, and that said Thompson on said day procured from plaintiff an order of said property to said Thompson, which in phraseology of said Thompson on the representation and agreement that he would still hold the same as security for his loans aforesaid, and that plaintiff's rights should not be injured by said Thompson having possession thereof. That thereafter said Thompson held said property according to said agreement, and frequently repeated to plaintiff and others that he simply held it as such security for said loans. That said Thompson did not thereafter at any time demand payment of said loans from plaintiff, but, to-wit, on the twenty-fourth of July, 1876, said Thompson, without the knowledge or consent of plaintiff, arranged with one Durham, agent for defendants, Cobb, Wight & Case, so that a deed to said property from said Thompson to said Cobb, Wight & Case was deposited with the Valley National Bank of St. Louis, together with drafts by said Durham on said Cobb, Wight & Case in favor of Thompson for $ 15,000, on condition when the drafts were paid said deed was to be delivered by said bank to said Cobb, Wight & Case. That before the payment of said drafts or delivery of said deed plaintiff notified said Cobb, Wight & Case of said agreement between said Thompson and himself, and that said Thompson had no right to sell property and warning them against paying said money to said Thompson. That notwithstanding said notice and warning said Cobb, Wight & Case paid said money, and said deed was delivered to them, in pursuance of an unlawful conspiracy between said Thompson and said Cobb, Wight & Case to cheat plaintiff out of his property. That afterwards, on the day of November, 1879, as soon as plaintiff had sufficiently recovered from his sickness, and had been able to try to procure his property from defendants, but without success, he instituted in the circuit court of St. Louis county, where said property was located, his certain suit in equity in words and figures, as follows, to-wit:

"'Plaintiff James Givens, states that, on the ninth day of August, A. D. 1873, the St. Louis Marble Company, a corporation, was the owner and in the possession of the following described real estate in the county of St. Louis, state of Missouri, to-wit: The southwest quarter of the northeast quarter, and the northwest quarter of the southeast quarter, and the northeast quarter of the southwest quarter of section number three (3); also the south half of the northeast quarter, the southeast quarter, the northwest quarter and the southwest quarter of section ten (10), all in township 44 north, range number 3 east, containing seven hundred and sixty-seven and eighty-hundredths acres. That on said last-mentioned date said company executed and delivered in due form to certain trustees a deed of conveyance, whereby it conveyed to said trustees the real estate above described, with all the appurtenances appertaining thereto; in trust, however, to secure payment of a certain indebtedness (in said deed fully set forth), and in trust to sell said property and apply proceeds of said sale to the discharge of said indebtedness in event the same was not previously paid when due, and to make the purchaser at such sale a valid deed of conveyance of the title of said company to said lands. That in due course said debt became due and was unpaid, and thereupon, at the request of the legal holder of evidences of the indebtedness secured by said deed of trust, said trustees advertised said property, and sold the same to satisfy the terms of said trust in full conformity to the said deed of trust mentioned above, and at such sale one William Groshon was the highest and best bidder, and the property aforesaid was accordingly struck off to him; and the trustees vested with said power by the deed aforesaid made and delivered to said Groshon a deed of conveyance of said property on the twenty-first day of April, A. D. 1874, which was duly recorded in the office of recorder of deeds, of the county of St. Louis (at that time), in book 495, page 396. That in making said purchase, and taking said deed, said Groshon was not acting for, and did not claim or intend to act for, himself;...