Italiani v. Higbee Coal Mining Co.

• Decision Date: 22 October 1932
• Docket Number: No. 30369.,30369.
• Citation: 53 S.W.2d 1050
• Parties: JOHN ITALIANI, Appellant, v. HIGBEE COAL MINING COMPANY.
• Court: Missouri Supreme Court

53 S.W.2d 1050

JOHN ITALIANI, Appellant, v. HIGBEE COAL MINING COMPANY.

No. 30369.

Supreme Court of Missouri, Division One.

October 22, 1932.

Appeal from Randolph Circuit Court. — Hon. A.W. Walker, Judge.

REVERSED AND REMANDED.

Jerry M. Jeffries and Redick O'Bryan for appellant.

(1) Where no demurrer or objections were made to the petition; and no motion to make the petition more definite and certain was filed; and no objections made to the introduction of evidence; and no suggestion of variance between the proof and petition as in this case; the petition is taken as stating what the evidence tends to prove. Sec. 817 R.S. 1929; Fischer v. Max, 49 Mo. 404; Ridgeway v. M.K. & T. Ry. Co., 161 Mo. App. 260; Bank v. Phillips, 179 Mo. App. 488; Thomas v. Bambrick Bros., 175 S.W. 258; Mellor v. Mo. Pac. Ry., 105 Mo. 466; Burrow v. Mo. Pac. Ry., 286 S.W. 434; Parish v. Casner et al., 282 S.W. 392; Buck v. Harris, 125 Mo. App. 365; Reilly v. Cullen, 159 Mo. 322; Garbee v. St. L.-S.F. Ry. Co., 290 S.W. 656; Reidle v. Scott, 296 S.W. 262; Whitchead v. Koberman, 299 S.W. 121. (2) A doubt as to whether a deed was intended as a conditional sale or a mortgage is always resolved in favor of its being a mortgage Williamson v. Frazee, 242 S.W. 958; Powell v. Crow, 204 Mo. 481; Tiedeman on Real Property, secs. 304, 305; Phillips v. Jackson, 240 Mo. 310. (3) A failure to put the declaration of trust in writing does not prevent a trust from resulting by operation of law, from acts of parties. No plea of the Statute of Frauds was interposed nor was objection made to the oral proof of the agreement. The Statute of Frauds only affects the remedy upon the contract and the rule is that unless the party to be charged with it undertakes to avail himself of its protection, the contract will be perfectly good against him. Condit v. Maxwell, 142 Mo. 266; Robertson v. Woods, 263 S.W. 135; Powell v. Crow, 204 Mo. 481; Leahey v. Witte, 123 Mo. 211; Phillips v. Hardenburg, 181 Mo. 463; R.S. 1929, sec. 3105; Bryan v. McCaskill, 225 S.W. 688; Johnston v. Bank of Poplar Bluff, 294 S.W. 111. (4) Where a deed recites a consideration of "$1.00 and other valuable consideration," as here, the consideration is open to explanation by oral evidence, not to defeat the deed, but for all other purposes. Here the other valuable consideration was proved to be that the grantee was a mere trustee to hold and act for the grantor in making the sale and lease and to reconvey when the balance, $3,000 was paid by royalties or otherwise. Reilly v. Cullen, 159 Mo. 329. (5) When court of equity acquires jurisdiction they will give full and complete relief. Williamson v. Frazee, 242 S.W. 961; Powell v. Crow, 204 Mo. 481. (6) The intention of the parties govern. If it was their intention that the deed, absolute on its face, be a mortgage, then a mortgage it was and nothing could change it. And in the effort to ascertain that intention we must consider what they said and did at the time, the circumstances and surroundings and their relationship to each other. Powell v. Crow, 204 Mo. 481; Sheppard v. Wagner, 240 Mo. 409; Leahey v. Witte, 123 Mo. 207; Tiedeman on Real Property. secs. 304, 305; Stephens v. Stephens, 232 S.W. 979; Phillips v. Jackson, 240 Mo. 310; Williamson v. Frazee, 242 S.W. 958.

Hunter & Chamier for respondents.

(1) The petition is bottomed on the theory that the instrument in question is an absolute conveyance with agreement of re-purchase. Facts necessary to be shown to convert a deed absolute into a mortgage are not alleged, and appellant's theory that the conveyance was a mortgage is not in the case. Duell v. Leslie, 207 Mo. 666; Jones v. Hubbard, 193 Mo. 164; Branham v. Peltzer, 173 S.W. 374; Munford v. Sheldon, 9 S.W. (2d) 909. (2) The rule of law that the petition will be considered as amended, and cases cited in support thereof, under Point 2 in appellant's brief, are not applicable to the case at bar. Appellant cannot recover on a cause of action different from the one alleged in his petition. Munford v. Sheldon, 9 S.W. (2d) 909; Henry Co. v. Citizens Bank, 208 Mo. 225; Traver v. Hicks, 131 Mo. 139; Sumner v. Rogers, 90 Mo. 330; Carson v. Cummings, 69 Mo. 329; Mark v. Cooperage Co., 204 Mo. 261. (3) A case must be heard in the appellate court upon the same theory as that on which it was tried below; therefore, appellant cannot urge here that the conveyance was a mortgage, because his petition was not framed, and the case was not tried on that theory. Snyder v. Am. Car & Foundry Co., 322 Mo. 156, 14 S.W. (2d) 607; Guthrie v. Gillespie, 6 S.W. (2d) 886, 319 Mo. 1137; Pienieng v. Wells, 271 S.W. 62; Kane v. McMenamy, 207 S.W. 662, 307 Mo. 98; St. Louis v. Wright Contracting Co., 210 Mo. 491; Dunnigan v. Green, 165 Mo. 113. (4) Since the petition is not based on the mortgage theory and the decree rendered conforms with the pleadings and proof, that theory cannot be considered by this court or made the basis of any relief in appellant's behalf. The equity rule that any relief consistent with the pleadings may be given has no application, and relief given here would be error. Riggs v. Price, 210 S.W. 427; Spindle v. Hyde, 247 Mo. 51, 152 S.W. 310; Foege v. Woestendiek, 212 S.W. 415; Wolz v. Venard, 253 Mo. 86, 161 S.W. 760; Davidson v. Real Estate & Inv. Co., 249 Mo. 474, 155 S.W. 1; Howard v. Scott, 225 Mo. 685, 125 S.W. 1158; Charles v. White, 214 Mo. 187, 112 S.W. 545; Schneider v. Patton et al., 175 Mo. 684, 75 S.W. 888; Newham v. Kenton, 79 Mo. 385. (5) It was plaintiff's duty to comply with the conditions imposed on him, and having failed to pay $3,000 cash at the time agreed, he was not entitled to a reconveyance. Slowey v. McMurray, 27 Mo. 119; Forrester v. Moore, 77 Mo. 661; Turner v. Kerr, 44 Mo. 433; Bobb v. Wolff, 148 Mo. 348. (6) The contract being an optional contract time is of its essence, and prompt performance must be tendered. Donovan v. Boeck, 217 Mo. 92; Dunaway v. Day, 163 Mo. 415; Davis v. Petty, 147 Mo. 374; Hollman v. Conlon, 143 Mo. 369; Glass v. Rowe, 103 Mo. 513; Mason v. Payne, 47 Mo. 517. (7) It was not necessary to plead laches. Donovan v. Boeck, 217 Mo. 92; Stevenson v. Smith, 189 Mo. 466. (8) In determining whether a transaction is a mortgage or a conditional sale, the understanding and purposes of the parties are to be considered, and if they intend the transaction to be a purchase of the property accompanied by an agreement to resell to the grantor in a given time and at a stipulated price, it is a conditional sale and not a mortgage. 41 C.J. 286; Turner v. Kerr. 44 Mo. 429; 3 Pomeroy Equity Jurisprudence, p. 2827; Bailey v. St. Louis Union Trust Co, 188 Mo. 486; Duell v. Leslie, 207 Mo. 658; Carson v. Lee, 281 Mo. 166; Donovan v. Boeck, 217 Mo. 70; Bobb v. Wolff, 148 Mo. 335; Forrester v. Moore, 77 Mo. 661; Cantwell v. Johnson, 236 Mo. 375. (9) The presumption is that the conveyance is what it purports on its face to be — an absolute conveyance, and to overcome this presumption, the evidence must be clear, unequivocal and convincing. Gerhardt v. Tucker, 187 Mo. 46; Rinkel v. Lubke, 246 Mo. 377; 3 Pomeroy Equity Jurisprudence, p. 2841; Brightwell v. McAfee, 249 Mo. 579; Williamson v. Frazee, 294 Mo. 331; Mayberry v. Clark, 317 Mo. 442; Snow v. Funck, 41 S.W. (2d) 2; Cuthbert v. Holmes, 14 S.W. (2d) 444. (10) The weight of the evidence establishes that the parties intended to do what they did do. — execute an absolute sale with the power of repurchase. Turner v. Kerr, 44 Mo. 432.

STURGIS. C.

The purpose of this suit is to have the court take an accounting of the amount of royalties collected by defendant from coal mined on property known as Mine No. 11, and to decree a conveyance of such mine by the defendant Higbee Coal Mining Company to the plaintiff. The personal defendants are the officers and owners of the capital stock of the Higbee Coal Mining Company. Mine No. 11 consists of the fee title to some seventy acres of land, together with the coal underlying a large body of other land adjacent thereto with the right to mine and remove the coal, and the structures and appliances used in connection with mining. The property is located near Higbee in Randolph County. Plaintiff contends that he has paid the full purchase price of this mine and is entitled to a conveyance of same to him subject only to a lease of same to the defendant Moniteau Coal Company, which is in possession of and operating the mine and from whom the defendant Higbee Coal Mining Company has been collecting the royalties paid on the coal as mined. The controversy is between plaintiff and the Higbee Coal Mining Company, and the Moniteau Coal Company is only interested as lessee, and its rights are conceded. The court tried the case and refused to grant plaintiff any relief; hence this appeal. Most of the facts are without dispute.

The Higbee Coal Mining Company, called herein the Higbee Company, had owned and operated this Mine No. 11. In March, 1925, it sold and conveyed same to plaintiff, including a large amount of mining appliances and personal property used in connection with the mining operations. The plaintiff then went into full possession and operated the mine for several months. During that time the Higbee Company was not interested in the mine or its operation further than it held plaintiff's notes secured by a deed of trust on the mine and mining property used in connection therewith, given in payment of the purchase price.

In August, 1925, the situation was this: Plaintiff had been operating the mine as owner since his purchase of same in March of that year. He had kept up his monthly payments of one note for $1400 due each month in addition to his cash payment of $100, making a total of $5700 paid to defendant on the purchase price of this mine. The total purchase price was $25,000 and there was yet due to defendant $19,300 represented by secured notes held by defendant Higbee Company. The plaintiff was having difficulty...