Hicks v. Jackson

• Decision Date: 31 October 1884
• Citation: 85 Mo. 283
• Parties: HICKS v. JACKSON et al., Appellants.
• Court: Missouri Supreme Court

85 Mo. 283

HICKS

v.JACKSON et al., Appellants.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Saline Circuit Court.--HON. W. T. WOOD, Judge.

AFFIRMED.

Philips & Jackson for appellant.

(1) The action was one at law and the court erred in ordering Hurt to be brought in as a co-defendant. 2 Jones on Mortgages, 889; McNair v. Picotte, 33 Mo. 57; Wright v. Cornelius, 10 Mo. 174; Wolff v. Schaeffer, 4 Mo. App. 367; C., 74 Mo. 154. Although our courts of law and equity are blended, the distinction between law and equity proceedings exists as much as ever in this state. Myers v. Field, 37 Mo. 434; Pauly v. Vogle, 42 Mo. 303; Wynn v. Corey, 43 Mo. 301. (2) As the issues were purely in law, the court could not render a judgment in favor of one defendant against his co-defendant, nor could the court in an action at law render two judgments. (3) According to the finding of the court Hurt's act amounted in law to a conversion and Jackson's remedy was in trover. Buck v. Kent, 3 Vt. 99; Coffin v. Anderson, 4 Blackf. 395; St. John v. O'Connell, 7 Post (Ala.) 466. (4) The judgment recovered against appellant is in excess of the sum sued for, and is not only contrary to the prayer of Jackson's answer, but contrary to the issues made in the pleadings. A party cannot even in equity sue for one thing and recover another; much less can he do so at law. White v. Rush, 58 Mo. 105; McNair v. Biddle, 8 Mo. 257, 267; Meade v. Knox, 12 Mo. 287; Beck v. Ferrara, 19 Mo. 30; Buffington v. Railroad, 64 Mo. 246; Freeman on Judg., sec. 158; Graham v. Ry. Co., 3 Wall. 704; Duncan v. Fisher, 18 Mo. 404; Pond v. Lockwood, 8 Ala. 669; Bolles v. Carli, 12 Minn. 114, 120. Nor can a party have a standing in chancery where he has a plain remedy at law. 1 Hempstead Cir. Ct. 114, 115; Thompson v. Manly, 16 Ga. 440, 442; Coughron v. Swift, 18 Ill. 414; Echols v. Hammond, 30 Miss. 177; Norwich Ry. v. Story, 17 Conn. 364; Janney v. Spedden, 38 Mo. 395. (5) Nor can a party recover in any case a greater sum than that sued for. Carr v. Edwards, 1 Mo. 137; Armstrong v. St. Louis, 3 Mo. App. 100, 105-6, and cases cited. Jackson asked judgment for $338.50, surplus proceeds of sale of hotel property, and recovered for $1,200, on account of another matter. (6) Had the answer of Jackson proceeded for the recovery of the amount of said notes, the judgment would be inequitable and bad. If, as the court finds, Hurt held the notes in trust for Jackson and wrongfully turned them over to Hicks, the measure of damages was the value of the notes at the time of the conversion. Spencer v. Vance, 57 Mo. 427, 430. The evidence on all sides of this case shows that the makers of the notes were insolvent, and had been; and the security given for the notes had been swept away by foreclosure sale under prior mortgage. In such a case the damages are only nominal. Fry v. Baxter, 10 Mo. 302-3; Ingalls v. Lord, 1 Cow. 240; Metzner v. Graham, 66 Mo. 660. A trustee, under such circumstances, is only bound for what he realizes. Hunter v. Hunter, 50 Mo. 445. (7) The finding and judgment of the court are against the overwhelming weight of the evidence, contrary to Jackson's conduct, acts and admissions, and are most inequitable.

C. A. Winslow for respondent.

(1) The trial couut applied the correct rule to the facts of the case. Perry on Trusts, 306, sec. 245; Tiffany & Bul. on Trusts, 112, 113; Van Renselaer v. Morris, 1 Paige, 13; Benbury v. Benbury, 2 Dev. & B. Eq. 235. (2) The court below necessarily found as a matter of fact that by the unwarranted disposition of the collaterals to Hicks the amount thereof was lost to Jackson, and this court cannot say that this finding was wrong from anything that conclusively appears in the record. Julian v. Abbott, 73 Mo. 580; Ryan v. Gilliam, 75 Mo. 132; Perry v. Hall, 75 Mo. 503. (3) It clearly appearing that Hurt converted the notes by transferring them to Hicks instead of returning them to Jackson, the measure of damages, prima facie, is the amount called for on their face, and there is nothing shown by the evidence to change this prima facie case; and the Burden was on Hurt. Menkens v. Menkens, 23 Mo. 252; Bredow v. Mut. Sav. Inst., 28 Mo. 181; State ex rel. v. Berning, 74 Mo. 87. (4) It is too late to object to the absence of a reply, even if the record fails to show one. Henslee v. Cannefax, 49 Mo. 295; Howell v. Reynolds Co., 51 Mo. 154; Insurance Co. v. Harlan, 72 Mo. 202. (5) The trial court had jurisdiction of the subject-matter and the parties. R. S., sec. 3465. All the facts are set out in the pleadings and general relief is asked. 38 Mo. 55; 37 Mo. 361; 48 Mo. 512. The statute authorized a judgment between the parties. R. S., sec. 3673. None of the objections as to the parties were made in the court below, either by demurrer, answer or motion; and they cannot be made for the first time in this court, even if they were meritorious, which is not the case. R. S., sec. 3774, and notes.

RAY, J.

The facts, presented by this record, are so involved and complicated, that it is quite difficult to summarize them, or to determine, or state with accuracy, their precise import and meaning. At the beginning, however, the case was simple enough; but in the progress of the cause, by reason of the introduction of a new party as a co-defendant, and the pleadings and issues between them, as well as those between the original plaintiff and defendant, the case became, as above suggested, quite involved and complicated. The action, as originally commenced by plaintiff, Hicks, against defendant, Jackson, was in the nature of ejectment, in the usual form, for the recovery of the possession of “the undivided one-half of the west parts of lots six and seven in block seven, in the town of Marshall, Saline county.”

The second amended answer of defendant, Jackson (upon which, and the reply and answer thereto, the case was finally tried), contained, among other things, an equitable defence and cross-bill, making appellant, Hurt, a party defendant; and upon the trial of the cause and the hearing of the cross-bill and Hurt's answer thereto, judgment was rendered in favor of plaintiff, Hicks, against defendant, Jackson, for the recovery of the property sued for; and, also, a judgment in favor of defendant, Jackson, against defendant, Hurt, for the sum of $1,224.50. From this judgment against him defendant, Jackson, took no appeal; nor did the plaintiff, Hicks, appeal from any part of the judgment in the cause, so that the real contest now before us, is between the defendants, Jackson and Hurt, on said cross-bill, and the answer thereto and issues thereunder.

To begin, it appears that in March, 1873, one Allen Jackson, being the owner in fee of said lots six and seven, borrowed of said Ossimus Hurt $2,500, for which he gave his note and deed of trust upon the property to secure its payment. Upon the property so encumbered by said deed of trust, there were, it seems, two separate and distinct buildings and improvements, upon different and distinct parts thereof; one of which was known as the ““Jackson Hotel property,” and the other, as the “Jackson Livery Stable property.” Afterwards, in September, 1877, default being made by said Allen Jackson in the payment of said note, the said Hurt caused the property to be advertised for sale under said trust deed. At the sale so advertised it appears that that part of the property known as the “hotel property” was first sold, and that said Hurt became the purchaser at the sum of $2,001, and immediately thereafter that part known as the “livery stable property,” was, also, sold, and that the plaintiff, Hicks, became the purchaser thereof at and for the sum of $1,700.25, and that deeds therefor were accordingly made to the respective purchasers; it is under the deed so made that Hicks, the plaintiff, claims the property sued for.

It also appears that between the date of said deed of trust in March, 1873, and the sales thereunder, in September, 1877, a great number of complicated transactions, conveyances, sales and agreements were had and made by and between various parties, affecting the title to said property, covered by said deed of trust, and especially that part of it involved in this suit, to many of which the defendant, Jackson, was a party, to others of which one Blackburn, Day and Nickell were parties, and to some of which the defendant, Hurt, was also a party. The first of the transactions, above referred to, was that by which the defendant, Wm. Jackson, by deeds from Allen Jackson, became the owner, subject to said deed of trust, of all the property covered thereby. Subsequently thereto, and after a number of intermediate transactions, the defendant, Wm. Jackson, by deed of general warranty, sold and conveyed to said Wm. A. Nickell an undivided one-half interest in the said “livery stable property,” for and at the price of $1,700.25. A part of the proceeds of this sale, it seems, by some arrangement between Day and Nickell and the defendants, Hurt and Jackson, was paid and secured to said Hurt, at his instance, in the following manner, and to the following extent: Said Day gave said Hurt a check on the Marshall bank for $600, which was immediately cashed, and said Day and Nickell executed to said Hurt their note for $250, and said Nickell executed his note to Hurt for $850.25, and to secure the same said Nickell also executed to said Hurt his deed of trust, or mortgage, with power of sale on said undivided half interest in said livery stable property.

It is alleged and claimed by defendant, Jackson, in his said amended answer, that defendant, Hurt, accepted and received the proceeds of this sale from Jackson to Nickell, of said half interest in said livery property, amounting to the sum of $1,700.25, as a payment and a credit, to that extent, on the original note and trust deed, from Allen Jackson to said Hurt, subject to which said Wm. Jackson then owned the property covered thereby. The defendant, Hurt,...