Howell v. Reynolds

• Decision Date: 09 June 1952
• Docket Number: No. 1,No. 42466,42466,1
• Citation: 249 S.W.2d 381
• Parties: HOWELL et ux. v. REYNOLDS et al
• Court: Missouri Supreme Court

Page 381

249 S.W.2d 381

HOWELL et ux. v.REYNOLDS et al.

No. 42466.

Supreme Court of Missouri, Division No. 1.

June 9, 1952.

Flynn and Parker, Francis C. Flynn, Norman C. Parker, St. Louis, for appellant.

Carroll J. Donohue, Salkey & Jones, St. Louis, for respondents.

HOLLINGSWORTH, Judge.

Plaintiffs-respondents brought this action in the Circuit Court of the City of St. Louis in three counts against defendant-appellant and the remaining defendants as co-partners, allegedly doing business under the firm name of Afro-American Building Improvement.By their first count they sought to recover damages from defendants in the sum of $10,000 for breach of a contract entered into between plaintiffs and defendants whereby defendants, for a consideration of $5,950, agreed to build a four room residence on a lot owned by plaintiffs in the City of Jennings, St. Louis County, Missouri, and for the breach of a supplemental contract increasing the consideration to $7,250.In their second count plaintiffs alleged fraud in the procurement from them by defendants of a note for $5,950 and deed of trust on said property securing the same, and sought $10,000 actual and $10,000 punitive damages therefor.In the third count plaintiffs, realleging fraud in the procurement thereof, sought cancellation of said deed of trust.

All defendants, other than A. W. Reynolds, defaulted.He answered, denying the partnership and alleging that he alone did business under the name of Afro-American Building Company.He(1) admitted the contracts, denied the breach thereof, alleged their performance by him and their breach by plaintiffs, and sought damages therefor in the sum of $9,000; (2) denied fraud in the procurement of the note and deed of trust, alleged fraud on the part of plaintiffs, and sought $10,000 actual and $10,000 punitive damages therefor; and (3) sought recovery for an alleged balance due for labor and materials furnished in the sum of $3,653.89.

The trial court found for defendants on plaintiffs' two counts for damages, for plaintiffs on their plea for cancellation of the note and deed of trust, for plaintiffs on defendants' two counts for damages, for defendants in the sum of $750 on the count for labor and materials, and entered a decree in accordance therewith.

DefendantA. W. Reynolds has appealed and in his appeal complains only of (1) that portion of the decree cancelling the deed of trust, and (2) the insufficiency of the award of $750 on the count for labor and materials.

That portion of the decree cancelling the deed of trust on the ground of fraud involves title to real estate within the meaning of Article V, Sec. 3, Constitution of Missouri, V.A.M.S., investing this court with jurisdiction of appeals in such cases.Conrey v. Pratt, 248 Mo. 576, 154 S.W. 749;Nettleton Bank v. McGauhey's Estate, 318 Mo. 948, 2 S.W.2d 771, 775;Munday v. Austin, 358 Mo. 959, 218 S.W.2d 624.

At this point serious jurisdictional questions are presented--questions raised by neither of the parties--but which this court of its own motion must determine: Did the Circuit Court of the City of St. Louis have jurisdiction to cancel for fraud in its procurement a deed of trust on land in St. Louis County?And, if it did not, then does this court have jurisdiction of the appeal?Section 508.030 RSMo 1949, V.A.M.S., provides: 'Suits for the possession of real estate, or whereby the title thereto may be affected * * * shall be brought in the county where such real estate, or some part thereof is situated.'The statute is mandatory as to venue in bringing such an action, and this court has consistently held it so to be, and its provisions cannot be waived.Castleman v. Castleman, 184 Mo. 432, 83 S.W. 757;State ex rel. Gavin v. Muench, 225 Mo. 210, 124 S.W. 1124;Alluvial Realty Co. v. Himmelberger-Harrison Lumber Co., 287 Mo. 299, 229 S.W. 757 762;Marston v. Catterlin, 290 Mo. 185, 234 S.W. 816;State ex rel. Minihan v. Aronson, 350 Mo. 309, 165 S.W.2d 404, 408.We hold that the trial court was without jurisdiction to decree cancellation of the deed of trust.

We deem it necessary to state, however, that we do not hold that after an action, either transitory or local, is properly instituted in any county that the court may not thereafter acquire jurisdiction of title to real estate situate in another county if it becomes necessary under the issues thereafter arising so to do in order to determine and adjudicate the rights of all parties to the suit.Section 509.060 of the Civil Code clearly indicates that once jurisdiction of a controversy and the parties thereto has attached the court has jurisdiction to determine all properly pleaded phases thereof.See alsoRice v. Griffith, 349 Mo. 373, 161 S.W.2d 220, andRobinson v. Field, 342 Mo. 778, 117 S.W.2d 308.Section 508.030, although mandatory as to the place of bringing an action affecting title to real estate, is, nevertheless, solely a venue statute.Henderson v. Shell Oil Co., 8 Cir., 173 F.2d 840.It does not restrict the trial and adjudication of defensive issues involving title to real estate to the county in which the real estate is situated.Neither does it restrict the general jurisdiction invested in circuit courts under the provisions of Article V, Sec. 14, of the Constitution.Rice v. Griffith, supra.We do not agree with the portion of that opinion basing the decision therein rendered on the ground that plaintiff therein 'waived' venue of the issue involving title to real estate presented by defendant's answer; rather, do we think that jurisdiction of that issue was properly vested for the reasons above stated.

The decree expressly determined an issue affecting title to real estate.Therefore, even though the judgment of the trial court was void, nevertheless jurisdiction of the appeal lies in this court.In the case of Watts v. Watts, 304, Mo. 361, 365, 263 S.W. 421, 422, an analogous situation was under consideration, and this court there said: 'It is claimed that, because the judgment attempting to divest the title to the real estate is void, this court is without jurisdiction of the appeal.The title to real estate is directly affected by the judgment so as to give this court jurisdiction, although the judgment is void on its face.This is the court to determine the question whether the judgment, which in form transfers property from one party to another, has that effect.'See alsoKennedy v. Duncan, 224 Mo. 661, 666, 123 S.W. 856, andState ex rel. Brown v. Hughes, 345 Mo. 958, 137 S.W.2d 544.And, once jurisdiction has been invested on one issue, it is retained for determination of all of the issues.15 C.J., Courts, Sec. 139, p. 825;21 C.J.S., Courts, Sec. 94, page 147.See alsoBarnes v. Metropolitan St. Ry. Co., 119 Mo.App. 303, 305, 95 S.W. 971;Mann v. Bank of Greenfield, 323 Mo. 1000, 20 S.W.2d 502, 506.

It does not follow that because the trial court was without jurisdiction to cancel the deed of trust that the portion of the decree cancelling the note is void.It was invested with jurisdiction so to do if the petition sought cancellation and the evidence warranted it.Hansen v. Duvall, 333 Mo. 59, 62 S.W.2d 732, 734.And, inasmuch as the third count of the petition sought general relief, the trial court had jurisdiction to restrain appellant from enforcing payment of the note, if the evidence so warranted.Kleber v. Carlos, Mo., 202 S.W.2d 865.

The petition, although alleging fraud in the procurement of both the note and deed of trust, asks only for cancellation of the deed of trust.This is clearly an oversight.The record shows that both parties tried the case on the theory that cancellation of both was sought.The decree expressly cancels both; and appellant does not question it on that ground.Hence, the petition will be considered as amended to include a prayer for cancellation of the note.Section 509.500, RSMo 1949, V.A.M.S. Allaben v. Shelbourne, 357 Mo. 1205, 212 S.W.2d 719, 725.We must therefore review the case on the errors assigned as to cancellation and the insufficiency of the award on appellant's counterclaim.

Plaintiffs, husband and wife, were married after each left military service following World War II.They had acquired the lot in 1946, and in the spring of 1948 were endeavoring to finance and build a home thereon.Efforts to obtain a loan had been unavailing.In response to a newspaper advertisement of the Afro-American Building Improvement, plaintiffs went to the office of that concern, where they met appellant.Several meetings ensued.

Plaintiffs' evidence was:

They told appellantthey had no money, had been unable to obtain a construction loan, and that there was no point in taking his time unless he could obtain a loan for them.Appellant then told them that 'his company' or 'his backers' would finance the building of the house and upon its completion they could get a FHA or other loan and pay off 'his company'.After some discussion, appellant agreed to furnish blue prints of plans for a home to cost $5,950, and a contract, prepared by appellant, was entered into.Plaintiffs were required to pay, and there paid appellant, $85 to cover the cost of blue prints.

This contract, dated April 12, 1948, has the following legend printed at the top thereof:

'T. W. Merchant--Treasurer

S. P. Reynolds--Architect and Construction Supervisor

'J. A. McWillie--General Manager

J. H. Perkins--Secretary

The Afro-American Building Improvement'

It provides that 'This four room Bungalow will be constructed according to certain Blue Print Plans with the specifications thereto, governing the construction of the same'; that upon production of a contractor's bond as security to perform the obligations of the contract to build 'the said house now helt in-mind', one-third of the contract price shall be paid; that 'when the excavation has been done concrete footings put in, foundation walls constructed, and waterpoofed from the out side, the...