Holcomb v. Mays.

• Decision Date: 10 November 1919
• Docket Number: No. 13321.,13321.
• Citation: 202 Mo. App. 167,215 S.W. 771
• Parties: HOLCOMB v. MAYS.
• Court: Missouri Court of Appeals

215 S.W. 771

202 Mo. App. 167

HOLCOMB v. MAYS.

No. 13321.

Kansas City Court of Appeals. Missouri.

November 10, 1919.

Appeal from Circuit Court, Buchanan County; Thos. B. Allen, Judge.

Action by Thomas W. Holcomb against Joseph W. Mays. Decree for plaintiff, and defendant appeals. Reversed.

Warren Rogers and Horace Merritt, both of St. Joseph, for appellant.

F. W. Paschal, of St. Joseph, for respondent.

TRIMBLE, J.

This is an action in equity, instituted July 13, 1918, by plaintiff against defendant to annul a portion of a judgment rendered November 12, 1917, in a former suit of plaintiff against defendant.

The former suit was in equity to set aside a sheriff's deed to defendant purporting to convey a residence tract described as lot 29 and, the west 18½ feet of lot 28 in block 1 Mitchell T. Thomas' addition to St. Joseph, and to decree that defendant had no interest in or title to said real estate. Therein plaintiff set up that on the 31st of January, 1913, C. F. Harris exchanged the equity in his farm for said lots, subject to a $1,750 deed of trust already thereon to the First Trust Company of St. Joseph, Mo.; that the farm given in exchange for the lots was the homestead of said Harris, and in exchanging said farm for the lots he merely transferred his homestead from the former to the latter, and said lots became his homestead and was exempt from any judgments or executions thereon; that on June 29, 1914, defendant recovered a judgment against Harris for $3,827.84; that on November 2, 1914, Harris gave a second deed of trust for $200 on said lots to the Security Bank of St. Joseph; that on October 11, 1915, Harris traded said lots to plaintiff for a certain other residence, and thereby transferred his homestead in said lots to the tract he got from plaintiff, but that it was not until after December 2, 1915, that Harris's deed was delivered to plaintiff; that on said December 2, 1915, the Security Bank foreclosed its deed of trust, and plaintiff bid in said lots at $293.20, and received a trustee's deed to said lots subject to taxes and the First Trust Company's deed of trust; that on November 20, 1916, defendant had an execution issued on his judgment against Harris, which was levied upon said lots, and they were sold at sheriff's sale, the defendant buying said property at $400 and obtaining a sheriff's deed therefor; that defendant claimed to be the owner of said lots, but that the lien of said judgment never attached to them, as they were Harris's homestead, and the sale under the execution passed no title, and said sheriff's deed conveyed no title, but is a cloud upon plaintiff's title, and defendant is attempting to exercise acts of ownership thereunder. The petition in said former suit closed with a prayer that the sheriff's deed be vacated, and that the court "decree that defendant has no interest or title in and to said real estate, and for general equitable relief and costs."

The answer in said former suit admitted that Harris became the owner of said lots; that defendant received the judgment alleged, and under it said property was levied upon and sold by the sheriff to defendant who received a deed therefor, and that defendant claimed to be the owner therof. All other allegations were denied, and the answer then set up facts in support of defendant's contention that Harris had no homestead in the property; that in February, 1917, plaintiff filed a suit against defendant, numbered 29451, wherein he admitted defendant was the owner of the property, and that the sheriff's deed had deprived plaintiff of whatever title he had therein, but sought for plaintiff an equitable lien thereon by way of subrogation for having paid off certain liens on the property while in ignorance of the fact that he did not own the property, by reason of which plaintiff was estopped to deny defendant's ownership.

The answer further alleged that defendant was the owner in fee of the said property claimed by the plaintiff; that the "plaintiff claims some right, title, estate, interest or lien in, concerning or affecting, or to the said property adverse to this defendant;" that plaintiff had at all times been in possession, and denied the defendant the right to enter; that the rental value was $40 per month, and defendant had been damaged by the withholding of possession, after notice to deliver, in the sum of $300. The answer closed with the following prayer:

"Wherefore defendant prays the court to ascertain and determine the right, title, estate, interest, and liens of the plaintiff and defendant respectively in and to, concerning or affecting, said described property, and by its decree adjudge and settle all demanded claims, rights, and interests in and to, concerning or affecting, said property; and, if the court determine that the defendant is the owner of the said property and entitled thereto, that it order and adjudge the defendant the possession thereof, and grant a writ of restitution to the defendant for the possession thereof, together with the value of the rents and profits as damages against the plaintiff for the withholding of the same from the defendant, and for such other orders and decrees as to the court may seem just and proper."

Plaintiff's reply in that suit denied the allegations of the answer, and especially denied the allegations that defendant was the owner of said real estate, and was entitled to any rental value thereof from plaintiff.

Said former suit was tried by the chancellor, and a decree was entered, as stated, on November 112, 1917. As written and entered upon the records of the court, the decree stated that the court "doth find, adjudge and decree that the plaintiff is not entitled to the relief sought and prayed for in his petition. That the defendant, Joseph W. Mays, is vested with and is the owner of the fee-simple title to the following real estate lying and being in Buchanan county, Mo., and described in the pleading of the parties hereto, to wit: The west eighteen and one-half (18½) feet of lot twenty-eight (28) and all of lot twenty-nine (29) in block one (1), in Mitchell Thomas addition to the City of St. Joseph. That the plaintiff, Thomas W. Holcomb, has no right, title, interest, lien, or claim whatsoever in or to, concerning or affecting the said real estate above described, Whether legal or equitable, and the plaintiff is forever barred from asserting any thereto."

The decree also found that defendant was entitled to the possession of the land, and had been damaged in the sum of $200 for the withholding thereof, and that the rental value was $30 per month, and adjudged that the plaintiff have possession of said real estate, and recover said sum of $200 and $30 per month until possession was obtained.

The purpose of the present suit is to eliminate, from tie decree so rendered, the judgment for $200 and that portion which says that the plaintiff has no "lien or claim whatsoever" "whether legal or equitable," in said real estate, and that "the plaintiff is forever barred from asserting any thereto." The rest of the decree was not challenged.

The ground of relief is that the above elements were fraudulently inserted in the form...