Hellman v. Somerville
| Decision Date | 19 May 1908 |
| Parties | CLEMENTINE HELLMAN v. WILLIAM SOMERVILLE et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jas. R. Kinealy Judge.
Affirmed.
Benj. J. Klene for appellants.
(1) 1. The facts disclosed by the record show such a meagre conception of equity by the plaintiff that no chancellor should seriously consider her bill. She is unwilling to do equity and hence should receive no aid in chancery. Ruppel v. Mo. Guarantee S. & B. Asso., 158 Mo. 613; Corby v. Bean, 44 Mo. 379; Kline v. Vogel, 90 Mo. 239; Woodard v. Mastin, 106 Mo. 324. 2. It was error on the part of the trial court to refuse defendants the right to show by testimony the unwillingness of plaintiff to do equity. Steckman v. Harber, 55 Mo.App. 71; Woodard v. Mastin, 106 Mo. 324. (2) Plaintiff failed by competent and convincing proof to show a scheme to hinder and defraud plaintiff, for the following reasons: (a) Defendant, William Somerville's testimony in this case was given in the case of Bredell v. Somerville et al., and read here as an admission against him. It cannot, therefore be considered against any other defendant in the case. (b) The testimony of Hattie P. Somerville read in this case as an admission against her was given by her in the case of Bredell v. Somerville et al. It cannot, therefore, be considered against any other defendant in the case. (c) The testimony of Laura P. Henderson, read in evidence in this case as an admission against her was given by her in the case of Bredell v. Somererville et al. It cannot, therefore, be considered against any other defendant in the case. (d) The testimony of Horatio N. Henderson, read in evidence in this case as an admission against him, was given by him in the case of Bredell v. Somerville et al. It cannot, therefore, be considered against any other defendant in this case. (e) With the testimony of each of these defendants limited to an admission against their respective selves, there remains no basis for the decree of the lower court, exclusive of other considerations. (3) The court erred in sustaining the demurrer to the cross-bill of the defendant Somerville. 1. Because the demurrer was a general one alleging insufficient facts to constitute a cause of action, this ground of demurrer the court declined to pass upon, but sustained the demurrer because the cross-bill was held not germane to the original bill. 2. Because the ruling of the court in sustaining said demurrer is in direct conflict with the provisions of the Code of Civil Procedure. R. S. 1899, sec. 605; Bliss on Code Pleading (3 Ed.), secs. 126 and 374. 3. Because the action stated in the petition is one founded on contract, and the cross-bill is a statement of a cause of action arising out of the transactions set forth in the bill as the foundation of her suit. R. S. 1899, sec. 605; Bliss on Code Pleading (3 Ed.), sec. 372. 4. Because the cause of action of plaintiff arising, as it does, out of contract, may be met by any other cause of action also arising on contract when stated in a cross-bill. R. S. 1899, sec. 605; Bliss on Code Pleading (3 Ed.), sec. 377; McElroy v. Ford, 81 Mo.App. 500. 5. Because the court, by its action in sustaining said demurrer, has denied the defendants Somerville their statutory right to set forth, by their answer, as many defenses and counterclaims as they have, whether they be such as, before the enactment of the Code of Civil Procedure, were denominated legal or equitable, or both. R. S. 1899, sec. 605; Bliss on Code Pleading (3 Ed.), sec. 383. 6. And besides all this, the cross-bill stated facts constituting a good cause of action entitling the defendants Somerville to redeem from the foreclosure sale of the Market street property. Frank v. Fraylor, 16 L. R. A. 115; Orrick v. Durham, 79 Mo.App. 74; Clark v. Bank, 57 Mo.App. 277; Brown v. Kirk, 20 Mo.App. 524. (4) Hattie P. Somerville, having received no benefit by reason of her signature to the $ 18,500 note of her husband, was a surety from the beginning. Barrett v. Davis, 104 Mo. 549; McCullon v. Boughton, 132 Mo. 601; Propes v. Propes, 171 Mo. 418; Johnson v. Franklin Bank, 173 Mo. 171; White v. Smith, 174 Mo. 186; Higgins v. Harvester Co., 181 Mo. 308; Barkhoefer v. Barkhoefer, 93 Mo.App. 373; Bruege v. Bedard, 89 Mo.App. 543. (5) Blair's assumption of the Somerville deed of trust and debt secured by it changed the relation of the Somervilles from principals to sureties, and Blair became the principal debtor. Orrick v. Durham, 79 Mo. 174; Smith v. Davis, 90 Mo.App. 530; Nelson v. Brown, 140 Mo. 580; Pratt v. Conway, 148 Mo. 291; Crone v. Stinde, 156 Mo. 262; Laumeier v. Hallock, 103 Mo.App. 116. (6) Whether the case of Mrs. Somerville alone be considered as an original surety, or whether both Mr. and Mrs. Somerville be considered as sureties under the assumption of their debt by Blair, in either case plaintiffs Somerville, one or both, are entitled to a decree declaring their right to redeem and be subrogated to the collaterals held by Mrs. Hellman upon payment of the debt. The right of redemption involves the right of subrogation. MacKenna v. Trust Co., 3 L. R. A. (N. S.) 1071; Taylor v. Tarr, 84 Mo. 420; Orrick v. Durham, 79 Mo. 174; Dwyer v. Rohan, 99 Mo.App. 133; Clark v. Bank, 57 Mo.App. 277; Bank v. Reed, 54 Mo.App. 94; Fisher v. B. & L. Assn., 59 Mo.App. 430; Ferguson v. Carson, 86 Mo. 673; Roberts v. Bartlett, 26 Mo.App. 611; Sheldon on Subrogation, sec. 24; Woodbury v. Swan, 58 N.H. 383. (7) From the time of the Blair assumption of the deed of trust it was the duty of Hellman to recognize Blair as the principal debtor, and the Somervilles as his sureties, in all their dealings in relation to the indebtedness secured by the deed of trust. He had no choice to do otherwise. In the cross-bill it is alleged he actually treated Blair as a principal. Smith v. Davis, 90 Mo.App. 539; Regan v. Williams, 88 Mo.App. 577; Pratt v. Conway, 148 Mo. 296. And it makes no difference that the purchaser assuming is not the immediate grantee of the makers of the note, but one more remote. Crone v. Stinde, 156 Mo. 262, overruling Hicks v. Hamilton, 144 Mo. 495. (8) But there is another principle through which we may just as certainly work out a dominating lien or right of a higher order or priority in the defendants Somerville as compared with the rights of plaintiff. This is through the doctrine of the vendor's lien retained by the Somervilles for unpaid purchase price. Henderson, their immediate grantee, was only a conduit of title, the beneficial interest remaining in the Somervilles. Orrick v. Durham, 79 Mo. 174; Bank v. Edwards, 84 Mo.App. 462; Phillips v. Schall, 21 Mo.App. 38. (9) In cases of sales for inadequate consideration the courts seize upon slight incidents, which, added to the inadequate price, impel them to decree a redemption from a mortgage sale, among such instances are the following: 1. Inadequate price coupled with sale in bulk. Miller v. Montgomery, 131 Mo. 595; Kelly v. Hart, 61 Mo. 463. 2. Inadequate price and inclement weather. Bank v. Richardson, 156 Mo. 270. 3. Inadequate price and absence of trustee from sale. Vail v. Jacobs, 62 Mo. 130. 4. Inadequate price and unusual hour of sale. Stoffel v. Schroeder, 62 Mo. 147; Miller v. Montgomery, 131 Mo. 595. 5. Inadequate price and failure to give customary notice to debtor in addition to proper publication. Hardware Co. v. Building Co., 132 Mo. 457; Sheridan v. Nation, 159 Mo. 27. 6. Mistake or inadvertence coupled with inadequate price. Kelly v. Hurt, 61 Mo. 643; Cole County v. Madden, 91 Mo. 585; McKee v. Logan, 82 Mo. 528; Dunn v. McCoy, 150 Mo. 566. 7. Friendly disinterestedness plausibly paraded, inadequate consideration and plaintiff's oppressive and inequitable conduct were held grounds for setting aside a sale under a deed of trust. Swon v. Stevens, 143 Mo. 398. 8. Inadequate price, and lulling into security by promise to take no step or act without notice, which promise was disregarded, are proper grounds for setting aside a sale. Clarkson v. Creely, 35 Mo. 95, 40 Mo. 114. 9. It is proper to show promises to redeem after sale, even though made subsequent to sale. Byrne v. Carson, 70 Mo.App. 132; Parketon v. Schlueter, 145 Mo. 55. (10) Our tender to pay is good. Ailey v. Barnett, 134 Mo. 313; Kline v. Vogel, 90 Mo. 239; Axman v. Smith, 156 Mo. 286.
H. A. & H. H. Haeussler and Geo. C. Hitchcock for respondent.
(1) From the undisputed evidence of Mechin, Clara C. Pullis, Hattie P. Somerville and Horatio N. Henderson, plaintiff was bound to recover without the admissions of parties contained in depositions at Bredell trial. (2) If evidence in this case does not make convincing proof of a scheme in Somerville to keep possession of the Washington avenue property here in question, and thus defraud their creditors, no evidence ever did do so in any case. It is glaring. (3) As to the cross-bill, it had no relation whatever to the property in question in this case. The Somervilles who filed same admitted that they had no interest whatever in either property sued for, or in the Market street property. They have had their day in court when sued and, moreover, have failed to do any act entitling them to consideration. The other defendants who really are interested filed no cross-bill with their answer. They only want the conveyance to Kalb held good, subject to the deed of trust she gave.
This cause is now pending in this court upon appeal from a decree and judgment of the St. Louis Circuit Court in favor of plaintiff. It is an action to cancel certain conveyances to property on Washington avenue in the city of St. Louis and to decree possession in plaintiff, and for certain injunctive and other relief. The...
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