Harwood v. Toms

• Decision Date: 05 November 1895
• Citation: 32 S.W. 666,130 Mo. 225
• Parties: Harwood v. Toms et al., Appellants
• Court: Missouri Supreme Court

32 S.W. 666

130 Mo. 225

Harwood v. Toms et al., Appellants

Supreme Court of Missouri

November 5, 1895

[Copyrighted Material Omitted]

130 Mo. 225 at 239.

Original Opinion of November 5, 1895, Report at: 130 Mo. 225.

Brace C. J., and Barclay, Gantt, Macfarlane, Sherwood and Robinson JJ. All concur except Judge Burgess.

OPINION ON REHEARING.

Per Curiam

A rehearing was granted in order that further consideration might be given to the chief substantial point urged on the motion for rehearing, namely, that the result reached on the first hearing was not sustainable, under the pleadings.

Plaintiff's contention on that point is that the answer pleads payment of the debt secured by the Rogers deed of trust (under which plaintiff claims); that such plea amounts to a concession of the original indebtedness; and that, hence, the question (treated in the first opinion in banc) as to what indebtedness was actually secured by the Rogers mortgage is foreign to the merits of the present appeal.

That contention was not lost sight of on the first hearing; but it may perhaps be well to add some observations upon it.

The plaintiff's petition in the action is a short, statutory form in ejectment.

The answer of defendant Toms admits possession, and then proceeds to set up several equitable defenses. It is very elaborate, covering more than ten pages of the printed abstract in this court.

In giving a history of the controversy the answer states that: "Plaintiffs base their claim of title to said lands solely and upon no other grounds than by and through a certain deed of trust, dated January 1, 1883" * * * "to secure to A. W. Frederick, J. T. House, and J. F. Harwood, one of the plaintiffs, jointly, the payment of a certain promissory note in said deed, described to be for the sum of $ 2,500, and payable to said payees jointly; and by and through a pretended sale of said premises," etc., "on the twenty-second day of August, A. D. 1889."

It is then charged "that prior to said pretended sale, to wit, about January 1, 1884, the said note, in said deed of trust described, had been fully paid and satisfied and said deed of trust ought in good conscience to have been satisfied of record."

Further along, the answer says that "said deed of trust was no longer a lien upon said premises, and that notice thereof was given to plaintiffs at said pretended sale, * * * by reason whereof defendant says that said deed of trust and pretended sale ought in good conscience to be set aside, canceled, and for naught held."

In other parts of the answer it is said that the proceeds of the loan effected by the Wilson mortgages were used by Frederick (in accordance with his promise to that effect) to satisfy all existing liens or claims against the property, and that the lenders were "led to believe, and did believe, that out of said money said Frederick paid and satisfied all liens then outstanding upon said premises, including such sum, if any, as was due upon the note and trust deed under which plaintiffs herein claim."

Plaintiff filed a reply to the answer; and, at the trial, both parties assumed, by their course of conduct, that a finding upon the plea of payment of the Rogers mortgage involved an inquiry into the amount that was actually due upon that mortgage at the time the sale thereunder was made.

It is familiar law in Missouri that parties are generally to be held bound on appeal by the positions they have taken in the trial court on controverted points.

Where, for example, there is any fair doubt as to the construction of a pleading, that construction which both parties have given to it at the trial will be taken to be a proper one, unless some rule of law forbids the acceptance of that construction.

The answer charges distinctly that the lien of the Rogers mortgage had been discharged when the sale thereunder...