Hendricks v. Calloway

• Citation: 211 Mo. 536,111 S.W. 60
• Parties: HENDRICKS et al. v. CALLOWAY et al.
• Decision Date: 01 April 1908
• Court: United States State Supreme Court of Missouri

111 S.W. 60

211 Mo. 536

HENDRICKS et al. v. CALLOWAY et al.

Supreme Court of Missouri, Division No. 1.

April 1, 1908.

Rehearing Denied April 13, 1908.

1. EXCEPTIONS, BILL OF—CONTENTS.

A bill of exceptions containing the statement: "Defendants filed their motion for a new trial * * * in words and figures as follows (clerk here copy motion for new trial), and * * * said motion * * * was by the court overruled, to which action * * * defendants at the time excepted"—shows that an exception was reserved to the overruling of the motion.

2. APPEAL AND ERROR—RECORD—BILL OF EXCEPTIONS.

Under Rev. St. 1899, § 866, as amended by Laws 1903, p. 105 (Ann. St. 1906, p. 815), providing that it shall not be necessary that the motion for new trial or in arrest shall be copied in the bill of exceptions, provided the bill contains the directions to the clerk to copy the same, and the same are so copied into the record, motions for new trial and in arrest need not be bodily copied into the bill of exceptions at the places named in the calls therefor, and it is sufficient to copy them in the record.

3. PLEADING—EFFECTS—WAIVER.

A defendant, refusing to stand on his demurrer and answering over, waives questions relating to misjoinder and multifariousness in the bill.

4. SAME.

Under Rev. St. 1899, §§ 598, 602 (Ann. St. 1906, pp. 624, 628), authorizing a demurrer to the petition on it appearing on the face there-of that the court has no jurisdiction, and authorizing an answer setting up that fact where the defect does not appear on the face of the petition, etc., an answer denying "that this court has any jurisdiction of this action as to" the answering defendants, and asking for the dismissal of the case, if deemed an affirmative allegation, is objectionable as a mere conclusion, and does not comply with the requirements of good pleading, and want of jurisdiction over defendants, who answered to the merits, will be deemed waived.

5. COURTS—JURISDICTION—WAIVER OF OBJECTION.

The general rule is that questions relating to the jurisdiction of the court over defendants are waived by answering over.

6. PLEADING—CONTRADICTORY ALLEGATIONS— ALTERNATIVE ALLEGATIONS.

A bill, which alleges that a deed of trust is a forgery, and which charges that the deed is valid, but that the foreclosure and the trustee's deed consummating the foreclosure are void because of actions preceding and attending the sale, shows that the pleader stands on two theories, one of which may be false and the other true, and, if either is true, he is entitled to relief, and the allegations are not contradictory, though the bill does not comply with Rev. St. 1899, § 626 (Ann. St. 1906, p. 650), providing that a party may allege any fact alternatively, etc.

7. DEPOSITIONS—ADMISSIBILITY — EVIDENCE— STATUTES.

Under Rev. St. 1899, § 2877 (Ann. St. 1906, p. 1659), providing that any party to a suit may obtain the deposition of any witness, a deposition cannot be read against one not a party to the suit at the time it was taken, for as to such person no suit was then pending.

8. APPEAL AND ERROR—RECORD—BILL OF EXCEPTIONS—STATUTES.

Under Rev. St. 1899, § 866, as amended by Laws 1903, p. 105 (Ann. St. 1906. p. 815), providing that any motion properly identified and deposited with the clerk need not be set forth in the bill of exceptions, provided the bill contains the directions to the clerk to copy the same, a bill of exceptions, containing a reference to the motion to suppress a deposition, a call for the clerk to copy the same, the ruling of the court, and the exceptions, is sufficient to authorize the court to review the ruling, where the motion appears in the record.

9. APPEAL AND ERROR—HARMLESS ERROR—ERRONEOUS RULINGS ON MOTION TO SUPPRESS DEPOSITIONS.

Where the court found that depositions were only admissible against certain defendants, the error in refusing to suppress the depositions as against other defendants was not ground for reversal.

10. VENDOR AND PURCHASER — BONA FIDE PURCHASER—TITLE ACQUIRED.

An innocent purchaser for value takes the title discharged of secret outstanding equities not on record, and such a purchaser may transfer the title to one having notice, and a good title will descend to such purchaser's heirs.

11. EVIDENCE—PRESUMPTIONS—FRAUD.

There is a presumption in favor of innocence, and, where a transaction comports as well with honesty as dishonesty, the transaction is presumptively honest.

12. VENDOR AND PURCHASER — BONA FIDE PURCHASER—EVIDENCE—SUFFICIENCY.

A purchaser of real estate paid full value, took a warranty deed, went into possession, and made improvements without notice of a nonrecorded equity. He did not have notice of facts

sufficient to put him on inquiry. The record showed a perfect legal title in his grantor for several years prior to the purchase. Held, that the purchaser was a bona fide purchaser for value, and his title was not subject to the unrecorded equity.

13. SAME.

Where the bill alleged that a purchaser had notice at the time of the purchase of plaintiff's outstanding equities and charged the purchaser with participation in a fraud against plaintiff, and the answer denied fraud and notice and pleaded the purchaser's good faith, and plaintiff introduced no evidence of notice, and defendants introduced as much proof sustaining the answer as the nature of the case made possible, a finding that the purchaser was a bona fide purchaser for value freed from plaintiff's equities was proper.

14. SAME — GRANTEE IN QUITCLAIM DEED — RIGHTS ACQUIRED.

A grantee in a recorded quitclaim deed for value, who has no actual notice, holds a good title against a prior unrecorded deed subject to record, and holds a good title against any equity to which the recording act applies; but his deed does not bar outstanding equities not the subject of record.

15. MORTGAGES — FORECLOSURE — SALES — AGREEMENTS TO CHILL BIDDING — EFFECT.

A combination to depress bidding at a foreclosure sale leaves the land subject to redemption by the nonparticipating owners of the equity of redemption as against a purchaser who is a party to such a combination.

16. SAME.

A wife owning real estate subject to her husband's right of curtesy executed deeds of trust in which the husband joined. The real estate consisted of two tracts. After her death, the husband and a third person made an agreement for the sale of the premises under the trust deed. The agreement provided that the third person should obtain title to one tract, and that the husband should become the beneficial owner of the other tract. The value of the first tract exceeded the amount of the indebtedness secured by the deeds of trust. A sale was made pursuant to the agreement. Held, that the sale was illegal as against the minor heirs of the wife.

17. QUIETING TITLE — NATURE OF ACTION.

An action to remove a cloud from a title to real estate, based on the theory that a deed of trust is a forgery, is essentially different from an action based on the theory that the deed of trust is valid, and that the foreclosure thereof is void.

18. LIMITATION OF ACTIONS — EQUITABLE ACTIONS.

A sale under a foreclosure of a deed of trust was consummated in 1891. The heirs of the grantor in the deed of trust were at that time minors, 18 years of age. Held, that an action by the heirs to set aside the foreclosure sale, commenced in 1901, was barred by limitations.

19. MORTGAGES — FORECLOSURE — EFFECT.

A deed of trust securing a debt conveyed two tracts of land. By agreement between the surviving husband of the grantor and a third person the tracts were sold to satisfy the debt. One tract was sufficient to satisfy the debt, which tract passed to the third person on the foreclosure of the deed of trust. Held, that the third person acquired title to the tract, and the indebtedness was discharged, for equity considers that done which should have been done, though the agreement was fraudulent as against the minor heirs of the grantor.

Appeal from Circuit Court, Schuyler County; N. M. Shelton, Judge.

Action by William D. Hendricks and others against William J. Calloway and others. From a judgment for plaintiffs, certain of the defendants appeal. Reversed and remanded.

E. R. Bartlett, for appellants. C. C. Fogle and Jerry M. Jeffries, for respondents.

LAMM, J.

This is the appeal of above defendants from a final decree in equity in a cause going from Scotland to Schuyler county on change of venue. There were other parties defendant (among them, William F. Hendricks) not appealing. Plaintiffs are the surviving children of said William F. Hendricks and one Martha A. Hendricks, his wife, deceased.

The decree, nisi, vests the title of the S. W. ¼, N. W. ¼ of section 3, and the S. E. ¼, N. E. ¼ of section 4 (hereinafter, for convenience, both 40's are called tract A) and the N. W. ¼, N. W. ¼ of section 5 (for convenience, hereinafter called tract B), all in township 64, range 11, in Scotland county, out of defendants and into plaintiffs, subject to the life estate of defendant Hendricks, said life estate being an estate by curtesy found by the chancellor to be now owned by his codefendants (the Calloways and McDaniel), and subject further to the payment of $125.30 found by the chancellor to be due defendant William J. Calloway as redemption from two certain deeds of trust. To get at that result, the chancellor set aside a trustee's deed to said William J. Calloway executed to him as a successful bidder on foreclosure of one of said deeds of trust. The deed of trust foreclosed was a first lien. It was executed on tracts A and B on November 8, 1886, by said Martha A. Hendricks and her said husband. It secured a principal note of $1,100 running five years at 6 per cent., with semiannual coupons attached, and, as it will be mentioned frequently in this opinion, for convenience it will be called C. The other deed of trust bore the same date, covered the same property, was executed by the same parties,...