Hewitt v. Price

• Decision Date: 02 April 1907
• Citation: 204 Mo. 31,102 S.W. 647
• Parties: HEWITT v. PRICE et al.
• Court: Missouri Supreme Court

102 S.W. 647

204 Mo. 31

HEWITT v. PRICE et al.

Supreme Court of Missouri, Division No. 2.

April 2, 1907.

1. VENUE—PERSONAL ACTIONS—TITLE TO REALTY.

Rev. St. 1899, § 604 [Ann. St. 1906, p. 631], provides that the answer shall contain a general or special denial of the allegations of the petition and a statement of any new matter constituting a defense or counterclaim, and section 605 [Ann. St. 1906, p. 635] provides that such counterclaim must be a cause of action arising out of the contract or transaction set forth in the petition as the foundation of plaintiff's claim or connected with the subject of the action, and that in an action on contract the defendant may set forth by answer as many defenses or counterclaims as he may have, whether they were previously denominated legal or equitable. Held that, where plaintiff brought suit on a note to recover a deficiency, after crediting the purchase price of land sold on foreclosure of the deed of trust securing the note, and defendants pleaded as a counterclaim the invalidity of the foreclosure proceedings for fraud, and sought to have the same set aside, the counterclaim, though incidentally involving title to real estate, nevertheless arose out of a matter connected with the subject of plaintiff's action, and hence did not render such action triable only in the county where the land was situated, under section 564.

2. MORTGAGES—DEED OF TRUST—FORECLOSURE —INVALID SALE—SCOPE OF RELIEF.

Where, in a suit to recover a deficiency judgment after foreclosure of a deed of trust, defendants pleaded a counterclaim that the foreclosure proceedings were fraudulent, and that the price for which the land was sold was inadequate, the court, on finding that such sale was invalid, had no power to find the true value of the land and require plaintiff to take the land under his purchase at the price so fixed in payment of the debt.

3. SAME—BURDEN OF PROOF.

On a counterclaim to set aside a foreclosure sale of a deed of trust for false representations or fraud, the burden of proof is on the party charging the fraud.

4. SAME—SCOPE OF RELIEF.

Where a foreclosure sale under a deed of trust was found to have been tainted with fraud, the court should either have set the sale aside, and placed the parties in statu quo, or at the election of the debtors have set the sale aside, on condition the creditor's debt and interest be fully satisfied.

5. EVIDENCE—VALUE—REAL ESTATE.

While the value or selling price of similar property may be admissible to determine the value of property in litigation, it must also appear that the location and character of such property is similar, and that the sales of the other property are not too remote in point of time.

Appeal from Circuit Court, Barton County; H. C. Timmonds, Judge.

Action by J. A. Hewitt against S. C. Price and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

This cause is now before this court upon appeal by the plaintiff from a judgment and decree of the Barton county circuit court. The origin of this controversy may thus be briefly stated: On July 30, 1891, the defendants, S. C. Price and Clara A. Price, executed their promissory note to the plaintiff for $940, due May 1, 1892, drawing interest at the rate of 8 per cent. per annum. This note was executed for the balance of the purchase money for an undivided interest in certain lands situate in Newton county, Mo., which was conveyed by the plaintiff to the defendants. To secure the payment of said note, the defendants on the date of the execution of the note executed a deed of trust to Lee D. Bell, trustee named in the deed of trust. The interest was paid on said note to January 1, 1894. On August 31, 1898, said note not having been fully paid and satisfied, at the request of the plaintiff the trustee sold the land. At the trustee's sale the plaintiff became the purchaser for the sum of $385. The amount of the purchase price at said trustee's sale, less the cost of foreclosing the deed of trust, was credited upon the note executed by the defendants, which amount was $366.80. On August 29, 1899, the plaintiff, J. A. Hewitt, appellant herein, instituted his suit in the circuit court of Jasper county, Mo., for the recovery of the balance due upon said note, which was executed in July, 1891. Upon application of defendants, the venue of said cause was changed to the circuit court of Barton county, and on December 6, 1900, the plaintiff and appellant herein filed his amended petition, upon which the cause was tried. The petition substantially alleged the date of the execution of the note by the defendants' enumerating the credits to which the defendants were entitled, and averring that the remainder of the note, together with interest, was due and unpaid, and prayed for judgment. The answer of the defendants admitted the execution of the note sued upon, but denied that the credits to which the defendants were entitled were correctly alleged in the petition. Then follows what defendants denominate in their brief an "equitable counterclaim," in which it is sought to obtain affirmative equitable relief. We deem it unnecessary to burden this opinion with a reproduction of the answer in full, but shall be content with a brief statement of the facts alleged in the answer upon which the respondents predicate their right to the relief sought.

It is alleged in the answer that fraud was practiced upon the defendants, and the fact that the deed of trust, to secure the payment of the note in suit, was to be foreclosed, was concealed from them, and they were misled by certain statements of the plaintiff, J. A. Hewitt. First, it is alleged that the price brought at the sale was grossly inadequate, and that the defendants had no notice that the sale was going to take place. Second, it is alleged in the answer that the defendants, by reason of an injury received, was incapacitated and unable to attend to business, and that the plaintiff, about the 15th of August, 1898, visited the defendant, S. C. Price, and tendered him his sympathy, and informed him that he had taken no proceedings to foreclose the deed of trust, and that no sale was to be made, when in fact it is averred that the plaintiff at that time, and a long time prior thereto, had taken steps to foreclose said deed of trust, and that the foreclosure proceeding was then pending. It is averred that, had he not been misled by the representations of the plaintiff, he or some one else representing him would have been present at the sale, and, had it not been for these facts, the property would have brought more than enough to have paid the note. It is also alleged that the defendants were not apprised of, and did not learn of, said sale, or of the fact that it would take place, in time to give bond for the redemption of the land as described in said deed of trust, as was provided by the statutes of this state. Sections 7079 and 7080, Rev. St. 1899 [Ann. St. 1906, p. 3429].

The reply of the plaintiff to the new matter set out in the answer consisted of a general denial. We deem it unnecessary to set out in detail the testimony of the plaintiff and defendants upon the issues as presented by the pleadings. With the views as entertained by this court as to the decree entered in this cause, it is sufficient to say that the court heard testimony upon the issues presented, and that upon some of the material allegations contained in the answer there was a conflict in the testimony. As to where the burden of proof rests, where it is sought to invalidate a transaction by charge of fraud, will be given attention during the course of the opinion. Upon the retrial of this cause, we are unable to say what testimony may be developed. Therefore we shall not undertake upon the disclosures of the record upon this appeal to make a finding of the facts. There will be ample time in which to review all testimony, and announce our conclusions as to the sufficiency of it, and award such relief as the parties may be entitled to, when this cause reaches here upon a decree in conformity with the law applicable to cases of this character.

This cause was submitted to the court and on the 21st day of September, 1901, during the session of the Barton county circuit court. The following interlocutory decree was rendered: "Now, at this day come all the parties, plaintiff and defendants, in the above-entitled cause, in person as well as by their respective attorneys, and announce ready for trial, and, a jury being waived, the issues are submitted to the court. Whereupon, after hearing the pleadings read and hearing the evidence and argument of counsel, the court doth find the following to be the facts in this case: On the 30th day of July, 1891, the above-named defendants executed and delivered to the above-named plaintiff their promissory note, now sued on in this case, whereby they promised, for value received, to pay to plaintiff or order the sum of $940 on the 1st day of May, 1892, together with interest thereon from date at the rate of 8 per cent. per annum; and, for the purpose of securing the payment of said note, the defendants at the same time executed and delivered to plaintiff their certain deed of trust, in the usual form, whereby they conveyed to Lee D. Bell, as trustee, an undivided one-third of the following described real estate, situate in Newton county, Mo., to wit: S. ½ of the N. W. ¼, and S. W. ¼ of the N. E. ¼, and W. ½ of the N. E. ¼ of the S. E. ¼, and six acres in the E. ½ of the N. E. ¼ of the S. W. ¼, all in section 15, township 26, range 32, with full power in said trustee to sell said real estate, in case of default in the payment of said note, for the purpose of satisfying the same. Defendants paid the interest on said note up to January 1, 1894, but no other or further payment was ever made thereon. On August 31, 1898, pursuant to the terms and provisions of said deed of trust, and at the request of the...