Houtz v. Hellman

• Decision Date: 31 May 1910
• Citation: 128 S.W. 1001,228 Mo. 655
• Parties: HOUTZ v. HELLMAN.
• Court: Missouri Supreme Court

128 S.W. 1001

228 Mo. 655

HOUTZ v. HELLMAN.

Supreme Court of Missouri, Division No. 1.

May 31, 1910.

1. APPEAL AND ERROR (§ 518)—RECORD—BILL OF EXCEPTIONS—DEMURRER.

A demurrer is a part of the record proper, and needs no term or final bill of exceptions to preserve it.

2. APPEAL AND ERROR (§ 301)—PRESERVATION OF ERROR—MOTION FOR NEW TRIAL—DEMURRER.

A demurrer and a ruling thereon being a part of the record proper and exceptions not necessary to preserve them, the ruling thereon need not be preserved in the motion for a new

trial; such motion being directed to matters of exception.

3. PLEADING (§ 418)—DEMURRER—WAIVER BY ANSWER OVER.

If defendant unsuccessfully demurs to a petition, he waives all grounds of demurrer by answering over, except the objection to jurisdiction of the subject-matter and the insufficiency of the petition as not stating a cause of action.

4. WORDS AND PHRASES—"MAN OF STRAW."

By the term "man of straw" is meant one of no substance, one in name only, an irresponsible person having no property to respond in damages, who loans himself out to others to sign contracts as a purchaser, knowing he is acting a lie.

5. SPECIFIC PERFORMANCE (§ 32)—CONTRACTS ENFORCEABLE—MUTUALITY.

Where a contract for the sale of land purported to be signed on behalf of the purchaser by one who was admittedly a straw man, and even this signature was in fact a sham, there was no contract binding on either party, and nothing that the purchaser or those really interested could enforce.

6. SPECIFIC PERFORMANCE (§ 32)—CONTRACTS ENFORCEABLE.

Where a contract for the sale of land purported to be signed on behalf of the purchaser by an irresponsible person and this signature was a sham, the purchaser or those actually interested could not claim that such straw man ratified the purported signature by bringing action thereon, as the vendor was entitled to have a contract mutual at the time it was executed.

7. SPECIFIC PERFORMANCE (§ 88) — CLEAN HANDS.

Where it appears that those seeking to enforce as purchasers a contract for the sale of land acted through the medium of an irresponsible person, so that at the time the contract was signed no one was bound to the vendor, and the purchase was evidently a trick to hold the land pending the rise or fall of real estate market, those actually interested as purchasers did not come into equity with clean hands in seeking to enforce the contract.

8. SPECIFIC PERFORMANCE (§ 8)—CONTRACTS ENFORCEABLE—DISCRETION OF COURT.

Specific performance is a matter of grace, and not of right, and rests in the discretion of the chancellor.

9. EQUITY (§ 65)—UNCLEAN HANDS—NECESSITY OF PLEADING.

No allegation of fraud is necessary to enable the chancellor to invoke the maxim of equity that he who comes into equity must come with clean hands.

Appeal from St. Louis Circuit Court; Robt. M. Foster, Judge.

Action by Charles Houtz against Bertha Hellman. From a judgment for plaintiff, defendant appeals. Reversed, and judgment ordered for defendant.

R. M. Nichols, for appellant. H. A. & C. R. Hamilton, for respondent.

LAMM, P. J.

Specific performance of a contract for the sale of real estate. Defendant comes up from a decree for plaintiff.

On February 3, 1906, defendant, a widow, owned a lot fronting on the south side of Pine street, St. Louis, 21 feet 6¾ inches by a depth of 109 feet, with a building thereon known as "1420 Pine." At that time she was in Eureka Springs, Ark. Her son, Charles, held a warrant of attorney executed by her in 1892 at Mannheim, Germany, making him the donee of a power to sell and deed said lot; its acknowledgment reading: "Before me, Jno. F. Winter, U. S. Consul at Mannheim, personally appeared the within named Bertha Hellman, who acknowledged that she signed, sealed and delivered the above power of attorney, on the day and year of its date, for the purposes therein expressed. In testimony whereof," etc. It will be seen that this acknowledgment does not state that Mrs. Hellman was "personally known" to the officer "to be the person whose name is subscribed to the instrument as a party thereto," as provided in section 913, Rev. St. 1899 (Ann. St. 1906, p. 841); nor does it certify that she executed the instrument as her "free act and deed," as per the form of acknowledgment suggested by that section. Under that power of attorney, Charles signed in duplicate a contract, viz.: "Contract of Sale. St. Louis, Mo., Feby. 3d, 1906. Received of Chas. Houtz two hundred and fifty dollars, as earnest money and part purchase money on account of the purchase of the following described property, situated in the city of St. Louis, state of Missouri, to wit: Lot, together with improvements thereon, known as No. 1420 Pine St., situated on the south side of Pine St., 79 feet east of the east line of 15th St., said lot having a frontage of 21 feet, six and ¾ inches by a depth of 109 feet to alley, all in C. B. 499, which property is this day sold to Chas. Houtz for the total sum of seventy-five hundred dollars, payable as follows: All cash less amount of above earnest money herewith paid. Rents to be adjusted from date sale is closed. The title to said property to be perfect and to be conveyed by warranty deed free from liens and incumbrances, except taxes for the year 1906 and thereafter, which the undersigned purchaser agrees to pay. If the title be found imperfect and cannot be perfected within a reasonable time, said Chas. Houtz is to be paid the cost of examining title, and earnest money to be refunded. The sale under this contract to be closed within twenty days from date or earnest money forfeited. Accepted on above terms and conditions. Mrs. Bertha Hellman. [Seal.] Chas. Hellman, Attorney. [Seal.] The decree specifically performed the foregoing contract.

No question is made on the petition. Defendant's first answer covered four defenses: First, a general denial; second (in substance) fraud, viz., that Houtz has no interest in the subject-matter of the suit, was a "mere straw man or kite," held a "servile position" in a restaurant, and was wholly without "means or substance"; that one Burdeau or some person unknown to defendant is the only person interested in the purchase, and, if the contract is binding, it is for the use and benefit of Burdeau or such other person; that defendant was deceived by the false representations of Burdeau or such other person into believing that Houtz was a bona fide purchaser, and was able and willing to purchase, etc., and that, to induce defendant to sign the contract and become bound, Burdeau or such other person, secretly and without the knowledge or authority of Houtz, signed his name to a duplicate of the contract, and delivered the same to defendant, representing the signature as genuine, all of which statements were false and fraudulent, were relied upon as true and defendant thereby was induced to sign, etc.; third, that the contract in suit was void because "the same is the product or outgrowth of an effort of the person or persons offering for sale the said real property described in plaintiff's petition, without first having obtained the written authority of the owner of said property, or the written authority of her attorney in fact appointed in writing, or of first having obtained the written authority of the person who has made a written contract for the purchase of said property with the owner thereof, all of which plaintiff well knew, or had constructive or actual knowledge thereof" (Note: The obscure language of the third defense evidently relates to the acts of one Hamburg and one Moser, who flitted in and out during the negotiations, higgling and dickering, and who were evidently in the pay of and used as conveniences by the Burdeau Real Estate Company, as will presently appear); and, fourth, that, if plaintiff was acting for an undisclosed principal at the time, then the contract was void, for that plaintiff was not authorized in writing to make it. Plaintiff demurred to the last three defenses on the ground that severally they did not state facts sufficient to constitute a defense to plaintiff's cause of action. That demurrer was sustained, defendant excepting and filing a term bill of exceptions. At a subsequent term she filed an amended answer raising the general issue, and, second, alleging there was a "misjoinder of parties plaintiff," that one Burdeau is the real person interested in the subject-matter of the suit, and that plaintiff is in no way interested therein, and should not be allowed to maintain the same. To this last defense plaintiff replied with a denial.

Such were the paper issues. Other facts essential to a determination of the appeal will appear later.

1. The fourth point in respondent's brief reads: "By filing an amended answer, appellant waived any error committed by the court in sustaining the demurrer to her former answer." The fifth reads: "The action of the court in sustaining the demurrer to the original answer is not subject to review, because the action of the court is not set up in the motion for a new trial as one of the reasons therefor." With this parry in respondent's brief we naturally turn to see the thrust in appellant's, and find the situation novel; for appellant does not assign error in the ruling on the demurrer. The matter is elaborated in her abstract, but, when it comes to the brief and assignment of error, her counsel apparently doubted his right to have the ruling on the demurrer reviewed in this court, so he says nothing about it. Despite his silence, tantamount to abandonment, counsel for respondent (anxious, maybe) deem it worth while to defend the trial court. As seen, they make the point that the error was waived first by filing the amended answer and again by failing to make the ruling a ground in the motion for a new trial. (Nota bene: That motion had no such ground.) Attending to this phase of the case, the general rule is that in argumentation he who affirms...