Hughes v. Spence

• Decision Date: 14 November 1966
• Docket Number: No. 1,No. 51583,51583,1
• Citation: Hughes v. Spence, 409 S.W.2d 701 (Mo. 1966)
• Parties: William Blair HUGHES and Mary Elizabeth Mosby, Plaintiffs-Respondents, v. George D. SPENCE et al., Defendants-Appellants
• Court: Missouri Supreme Court

Page 701

409 S.W.2d 701

William Blair HUGHES and Mary Elizabeth Mosby, Plaintiffs-Respondents, v.George D. SPENCE et al., Defendants-Appellants.

No. 51583.

Supreme Court of Missouri, Division No. 1.

Nov. 14, 1966.

Motion for Rehearing or to Transfer to Court En Banc Denied

Dec. 12, 1966.

Opinion Modified on Court's Own Motion Dec. 12, 1966.

McHaney, Billings & Welman, by William H. Billings, Kennett, for plaintiffs-respondents.

Riddle, O'Herin & Newberry, by Veryl L. Riddle, Malden, for defendants-appellants, George D. Spence, Everett Braden, Mittie V. Spence.

WELBORN, Commissioner.

This action began by a petition filed October 3, 1959, in the Pemiscot County Circuit Court by contingent remaindermen under a trust involving real estate situated in Dunklin County to cancel and annul 1930 judgments of that court, terminating the trust and vesting title to the real estate involved in the life beneficiary of the trust.Dr. E. L. Spence, named as partydefendant because he claimed an interest in the land by conveyance from the life beneficiary, denied the invalidity of the prior judgments and filed a counterclaim, seeking to quiet title in himself.Plaintiffs, by their reply, sought to cancel the conveyances by which Spence claimed his title, and to quiet title in themselves, subject to the outstanding life estate.The trial court's decree annulled the prior judgments insofar as they affected the plaintiffs, cancelled the conveyances to Spence insofar as they affected plaintiffs' interests, and quieted title in plaintiffs, subject to the life estate of the beneficiary previously conveyed to Spence.Spence appealed from such judgment.Pending this appeal, Doctor Spence died.His successors, George D. Spence, Everett Braden and Mittie V. Spence, were substituted as partiesappellant.

The 1930Pemiscot County Circuit Court judgments here involved are the subject of a prior opinion of this court in Hughes v. Neely, Mo.Sup., 332 S.W.2d 1, decided January 11, 1960.The prior opinion affirmed a judgment of the Pemiscot County Circuit Court in an action brought by plaintiffs in the present case, annulling the 1930 judgments insofar as they affected the interests of plaintiffs in two tracts not here involved.Although his original answer in this case sought to sustain his claim on the basis of the 1930 judgments, defendant Spence subsequently amended his answer, basing his claim upon transactions to be more fully discussed below.

At the outset, we are confronted by a jurisdictional question raised by appellants.Although Doctor Spence invoked the jurisdiction of the Pemiscot County Circuit Court below, appellants now suggest that the action there was one affecting title to real estate within § 508.030, RSMo 1959, V.A.M.S., and that, since the real estate involved is situated in Dunklin County, the Pemiscot County Circuit Court lacked jurisdiction.Our jurisdiction of the appeal is clear, since the decree appealed from did determine title to real estate.Howell v. Reynolds, Mo.Sup., 249 S.W.2d 381, 383(1--3).However, we would, as appellants suggest, examine the jurisdiction of the court below to enter such judgment, even though the matter had been raised by the parties neither in that court nor here.Howell v. Reynolds, supra;March v. Gerstenschlager, Mo.Sup., 322 S.W.2d 743, 744(1).

The 1930 actions had originated in Dunklin County and were taken to the Pemiscot County Circuit Court on a change of venue.Plaintiffs' petition in the present action sought only the cancellation of the 1930 judgments.Therefore, the action was properly brought in Pemiscot County.§ 526.090, RSMo 1959, V.A.M.S.Such venue was proper, although the judgment sought would have incidentally affected title to real estate situated in another county.Capitain v. Mississippi Valley Trust Co., 240 Mo. 484, 144 S.W. 466, 468(1);Capitain v. Mississippi Valley Trust Co., Mo.Sup., 177 S.W. 628, 632(1).

By his counterclaim, defendant Spence asserted title to one forty-acre tract under a trustee's deed upon foreclosure of a mortgage authorized by the trust instrument.Although he did not expressly so state in his counterclaim, he also claimed title to the other forty-acre tract even though the 1930Pemiscot County Court judgments were void and he sought to quiet title in himself as to both tracts.Plaintiffs joined issue on the asserted title of Spence, asserting the invalidity, unther the trust instrument, of the mortgage through which Spence claimed title to the one tract and of the deed which he relied upon with respect to the other.Plaintiffs sought an affirmative declaration of their title as against Doctor Spence.As above stated, the court did quiet the title in favor of plaintiffs as against Spence, in addition to cancelling the 1930 judgments, in accordance with plaintiffs' original petition.

In view of our prior construction of § 508.030 as jurisdictional and nonwaivable, we cannot avoid appellants here questioning the jurisdiction of the Pemiscot County Circuit Court to determine the quiet title issues which Doctor Spence injected into the action in the circuit court.The suggestion in Rice v. Griffith, 349 Mo. 373, 161 S.W.2d 220, that the limitation of § 508.030 might be waived was repudiated in Howell v. Reynolds, Mo.Sup., 249 S.W.2d 381, 384, andMarch v. Gerstenschlager, 322 S.W.2d 743, 744.However, the court, in Howell v. Reynolds, did characterize § 508.030 as a 'venue'statute.It is such in the sense that upon the proper invocation of its power, the circuit court of one county may affect title to realty in another.Thus, a change of venue to another county is permissible in such actions.Henderson v. Henderson, 55 Mo. 534;Blanchard v. Dorman, 236 Mo. 416, 139 S.W. 395.

In Hewitt v. Price, 204 Mo. 31, 102 S.W. 647, plaintiff foreclosed a deed of trust on land in Newton County and purchased the property.He sued in the Jasper County Circuit Court for the deficiency between the sale price and the balance due on the indebtedness.A change of venue was taken to Barton County, where defendant filed a counterclaim attacking the validity of the trustee's sale and seeking to set it aside on the grounds of fraud.On the appeal from an adverse judgment, plaintiff questioned the jurisdiction of the trial court to determine the matters raised by defendant's counterclaim, contending that it sought the affirmative relief by which the title to real estate would be affected.The court upheld the authority of the Barton County Circuit Court to grant the relief requested by defendant in the counterclaim.The court referred to the counterclaim statute in effect at that time (§§ 604and605, RSMo 1899) and stated: 'Our Code has made very liberal provisions respecting the settlement of controversies between litigants, and has made ample provision, where suits are brought, for the defendants by way of cross bill or counterclaim, to assert every right to which they may be entitled connected with the subject-matter of the cause of action alleged in the petition.'102 S.W. 649--650.

In Howell v. Reynolds, 249 S.W.2d 381, in holding that, under § 508.030, the Circuit Court for the City of St. Louis lacked the authority under plaintiff's petition seeking such relief to cancel a deed of trust on land in St. Louis County, the court stated (249 S.W.2d 384):

'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, § 14, of the Constitution(V.A.M.S.).Rice v. Griffith, supra.'

These cases, in our opinion, support the conclusion that our counterclaim statute(§ 509.420, RSMo1949) and the superseding rule (Civil Rule 55.45, V.A.M.R.) have, in effect, carved out an exception to the requirement of § 508.030.The result in Rice v. Griffith, supra, is consistent with such conclusion.On such basis, we conclude that, the action here involved having been properly brought in the Pemiscot County Circuit Court, its authority to make a full determination of the relevant issues presented by the counterclaim filed in the original action is not precluded by § 508.030.

Turning to the merits, plaintiffs in this case, William Blair Hughes and Mary Elizabeth Mosby, are the son and daughter of the defendantMargaret E. Hughes.Margaret E. Hughes is the daughter of James M. Douglass.In October, 1919, Douglass conveyed the two forty-acre tracts here involved as part of a 260-acre tract to his son, T. G. Douglass, as trustee for Margaret E. Hughes, the grantor reserving to himself a life estate.The conveyance to the trustee was 'For the sole use and benefit of the said Margaret E. Hughes during her natural life and at her death to go direct to the heirs of her body.'James M. Douglass died in 1921, and by his will devised other lands, not here involved, to T. G. Douglass as trustee for Margaret during her life.

T. G. Douglass took over the property and managed it for...