Hanson v. Neal

• Decision Date: 25 November 1908
• Citation: 114 S.W. 1073,215 Mo. 256
• Parties: HANSON v. NEAL et al.
• Court: Missouri Supreme Court

114 S.W. 1073

215 Mo. 256

HANSON v. NEAL et al.

Supreme Court of Missouri.

November 25, 1908.

On Rehearing, December 16, 1908.

1. PLEADING (§ 426) — WAIVER OF OBJECTIONS — ANSWERING TO MERITS.

Any error in overruling a motion to elect on the ground of misjoinder of causes of action against two defendants was waived by answering to the merits, and the objection could not be preserved by pleading a misjoinder of parties and causes of action, at least where the petition disclosed such defect on its face.

2. EQUITY (§ 150) — PLEADING — MULTIFARIOUSNESS — FORECLOSURE OF MORTGAGE.

Where defendants, pursuant to a common understanding had between them, received the deeds to land sold at a trustee's sale, a bill to set aside the deeds was not multifarious for joining them as defendants, where the causes of action against them depended on the same evidence.

3. APPEAL AND ERROR (§ 1054) — HARMLESS ERROR — RULINGS ON EVIDENCE — EQUITY CASES.

Rulings on the admission of testimony are rarely reversible error on appeal in equity, as the appellate court can determine the equities by considering competent proof excluded, or rejecting incompetent proof received.

4. EVIDENCE (§ 158) — BEST EVIDENCE — TRANSACTIONS SHOWN BY WRITING — MORTGAGES.

A witness could not give his opinion as to whether a property owner gave an additional mortgage on the property to secure notes, and whether a trust deed was additional security, there being better evidence of those facts, if material.

5. MORTGAGES (§ 369) — FORECLOSURE BY SALE — SETTING ASIDE SALE — ADMISSIBILITY OF EVIDENCE.

In a suit to set aside a sale of property under a trust deed, a question as to whether a payment on the secured note was in cash or in land was irrelevant, the material fact being the payment, and not how it was made.

6. WITNESSES (§ 237) — EXAMINATION — QUESTION ASSUMING FACTS.

In an action to set aside a sale under a trust deed, a question whether the witness knew of the cloud on the title of the land sold was properly refused as assuming the existence of the cloud, when that was not in evidence.

7. EVIDENCE (§ 158) — BEST EVIDENCE — CLOUD ON TITLE.

If there was a cloud upon the title of land, there was a better way to prove it than by asking a witness as to his knowledge thereof.

8. MORTGAGES (§ 369) — SALE UNDER POWER — TRUST DEED — SETTING ASIDE SALE — RELIEF GRANTED.

Where a sale under a trust deed was set aside, the purchasers should be put in the same situation they were before the sale as far as possible, and the net proceeds of the sale should have been returned to them, as well as the expenses of the sale.

9. EQUITY (§ 66) — MAXIMS.

The maxim that one seeking equity must do equity as the price of his relief will be enforced, unless its application would be inequitable.

10. MORTGAGES (§ 369) — FORECLOSURE BY SALE — SETTING ASIDE SALE — PERSONS ENTITLED TO RELIEF.

In an action by the owner to set aside a sale made under a trust deed on the ground of misconduct of the trustee, that plaintiff's agent attempted to have the deed made to plaintiff after the sale, by offering to pay the expenses of the sale and a sum in addition thereto, was not such inequitable conduct by plaintiff as to bar relief, she being guilty of no act of misfeasance or nonfeasance before the sale.

11. MORTGAGES (§ 209) — TRUST DEEDS — SALE — DUTY OF TRUSTEE.

Trustees for the sale of land under a trust deed are the agents of the debtor and creditor, and are bound to exercise the strictest impartiality and integrity to conserve their principals' interests, and equity will closely scrutinize their transactions to prevent an abuse of trust.

12. EQUITY (§ 13) — PRINCIPLES — INADEQUACY OF CONSIDERATION.

Inadequacy of consideration, as a general rule, is not of itself a distinct ground of equitable relief.

13. MORTGAGES (§ 351) — FORECLOSURE BY SALE — VALIDITY OF SALE.

Where a trustee under a trust deed sold the land at an unusual hour at the request of prospective bidders, after having been requested by the mortgagee to wait until the usual hour of sale, the mortgagor's representative being also absent because of the unusual hour of sale, and the price received was grossly inadequate, the trustee was guilty of a breach of duty so as to render the sale invalid.

14. MORTGAGES (§ 369) — FORECLOSURE BY SALE — SETTING ASIDE SALE — SUFFICIENCY OF EVIDENCE.

In a suit to set aside a sale made under a trust deed, evidence held to show collusion by the trustee and the bidders at the sale.

15. APPEAL AND ERROR (§ 254) — EXCEPTIONS — OVERRULING DEMURRER — NECESSITY OF EXCEPTIONS.

No exception was necessary to preserve for review an order overruling a demurrer to the petition.

16. PLEADING (§ 418) — WAIVER OF OBJECTIONS — DEMURRER TO PETITION — PLEADING OVER.

A defendant waives his demurrer to the petition by answering over, at least as to every ground except jurisdictional objections, or the failure of the petition to state facts sufficient to constitute a cause of action.

17. PLEADING (§ 201) — DEMURRER — FORM.

The purpose of the statute prescribing the grounds of demurrer was to direct the trial court's attention to the precise ground of objection relied on, and in stating the grounds of demurrer it is better to follow the statute.

18. EQUITY (§ 46) — EQUITABLE RELIEF — GROUNDS.

Equity will give relief, where a plain, adequate, and complete remedy cannot be had at law, as where the legal remedy is doubtful or obscure, or if it falls short of what the party is entitled to, or does not completely secure to him his full rights.

19. MORTGAGES (§ 369) — FORECLOSURE BY SALE — SETTING ASIDE — PLEADING — INSUFFICIENCY OF LEGAL REMEDY.

Where the allegations of the petition in an action to set aside a sale under a trust deed showed that plaintiff had no adequate legal remedy, it was unnecessary to allege that fact.

20. MORTGAGES (§ 369) — SALE UNDER POWER — SETTING ASIDE SALE — GROUNDS FOR RELIEF.

Where a sale of land under a trust deed was invalid because of collusion between the trustee and the purchasers resulting in a sale for a grossly inadequate price, the mortgagee was entitled to have the sale set aside and the trust deed reinstated, her remedy against the mortgagor being inadequate, even though he was not then insolvent, and hence it was unnecessary to allege his insolvency.

21. EQUITY (§ 44) — EQUITABLE RELIEF — JURISDICTION.

Equity has exclusive jurisdiction of some cases, and concurrent jurisdiction with law courts of others, and in one class of cases it obtains jurisdiction because of the inadequacy of the legal remedy, while in another class of cases its jurisdiction is invoked in aid of a legal remedy.

22. MORTGAGES (§ 369) — SALE — SETTING ASIDE — JURISDICTION.

Equity has exclusive jurisdiction of a suit to set aside an invalid sale made under a trust deed.

Appeal from Circuit Court, Ripley County; W. N. Evans, Judge.

Action by Anna M. Hanson against George A. Neal and others. From a judgment for plaintiff, two of defendants appeal. Reversed, and remanded with directions.

Plaintiff, beneficiary under a deed of trust covering 1,360 acres of land, more or less, in Ripley county, Mo., and securing an indebtedness of between $2,000 and $3,000, on the 8th day of February, 1905, brought her suit in equity against A. J. O'Neal, sheriff and acting trustee making a sale under said deed of trust, and George A. Neal and Thomas F. Lane, purchasers at such trustee's sale, the object and general nature of which was to set aside the sale and the deeds made to them. The decree, nisi, went in favor of plaintiff against all the defendants. The sheriff abides the decree; Neal and Lane appeal.

The petition alleges the execution and record of the deed of trust on the 23d day of September, 1901, by one Keith and wife to Robert Moore, trustee for plaintiff, to secure notes made by Keith aggregating $3,144.80. That certain of the lands conveyed (describing several tracts) were in sections 7, 17, 18, and 19, in township 24, range 3. These lands comprised about 560 acres, and for convenience will be called "Tract A." Certain other lands conveyed (describing several tracts) were in sections 2, 3, and 10, in township 23, range 1. The latter comprised about 800 acres, and for convenience will be called "Tract B." It is averred that the trustee nominated in the deed of trust refused to act, and that at the request of the legal holder of the secured notes the acting sheriff of Ripley county, defendant O'Neal, acted as trustee under the powers and terms in the deed of trust, and advertised a sale to take place on the 8th day of February, 1905. That, on the day preceding the sale, plaintiff through her agent requested the sheriff not to sell the lands till the arrival of the Neeleysville train at Doniphan, the place of sale, so that she might be represented. That the said sheriff before noon and at an unusual hour, and before the arrival of said train, sold the lands in the absence of plaintiff or any one representing her, and Lane and Neal became the purchasers, to wit, said Lane of tract A at $35, and said Neal of tract B at $152. That the land was reasonably worth $4,000, and was sold at the aforesaid grossly inadequate price. That the train from Neeleysville arrived at Doniphan at about 11:30 a. m. on February 8, 1905, and if the sheriff had postponed the sale until the arrival of said train plaintiff would have been represented at the sale and would have prevented the sacrifice of said lands by bidding thereon. That the sheriff and acting trustee tendered plaintiff the proceeds of said sale after deducting expenses, which she refused to receive. That in turn she offered to pay the expenses incurred in the sale, and still offers and tenders the amount incurred by reason of such expenses. That a deed to the purchaser Lane has not been filed for record, and plaintiff had no knowledge as to whether one had been executed. There was no allegation in the bill that Keith was...