Kanan v. Wright

• Decision Date: 16 March 1925
• Docket Number: No. 24256.,24256.
• Parties: KANAN v. WRIGHT.
• Court: Missouri Supreme Court

270 S.W. 650

KANAN v. WRIGHT.

No. 24256.

Supreme Court of Missouri, Division No. 1.

March 16, 1925.

Appeal from Circuit Court, Clinton County; A. M. Tibbels, Judge.

Suit by Dennis Kanan against John Wright and others. From judgment refusing motion to dismiss, defendant named appeals. Affirmed.

E. G. Robison, of Maysville, for appellant. Frank B. Klepper, of Cameron, and R. H. Musser, of Plattsburg, for respondent.

GRAVES, J.

This is a companion case of case No. 24255 (270 S. W. 646), and the two were argued and submitted together. In our case No. 24255, we have, as to all answering defendants (and such included all defendants except John Wright), ruled that under count 1 the written instrument should by decree be reformed, and that under count 2 title should be decreed in plaintiff Dennis Danan. That case was tried upon an amended petition. John Wright moved to dismiss the amended petition, and his motion reads:

"Comes now the defendant John Wright, and moves the court to dismiss plaintiff's first amended petition, and for grounds therefor says:

"That the amended petition is a departure from the original cause of action.

"That the amended petition is a substitution of a new and different cause of action from that stated in the original petition.

"That it required different evidence to support the allegations of the amended petition from that of the original petition.

"That the amended petition changes the form of the action from an action at law to a bill in equity.

"That the same evidence will not support the original petition and the amended petition.

"That the amendment is not authorized by law."

The original petition was one to ascertain and decree title. The amendment made consisted in adding a count to reform the deed. John Wright's motion being overruled, he saved and preserved his exceptions, refused to plead further, and permitted a default judgment to be entered as to him.

His appeal centers around the ruling on his motion to dismiss. Further details are left for the opinion.

I. The original petition was a pure action to determine interests of the parties, as was provided in the old section 650 of R. S. 1899, vol. 1, p. 261. It was extremely short and averred that plaintiff was the owner in fee of the lots of ground in question, and that the defendants were claiming title to the property adverse and prejudicial to the interest of plaintiff, and by the prayer the court was asked by decree to "adjudge, determine, settle, quiet and define the rights, titles, interests and estate of the plaintiff and defendants in and to said property," and concluded with a prayer for general relief. The amended petition, as we have suggested, was in two counts. The first count sought the reformation of a deed from Amanda Kanan to Dennis Kanan. The second count was to quiet title, but, among other things, contained the following allegations:

"That the defendants and each of them claim and assert some title to the said tract of land, and that their said claim, if any, arises from the execution and delivery of a certain deed by Amanda Kanan on the 12th day of October, 1916, to this plaintiff, which said deed is recorded in book 128 at page 536 of the records of the recorder's office of Clinton county, Mo., and the plaintiff is informed and believes that the defendant, who with Edna Kanan and Gertrude Curtis are the sole and only heirs at law of Amanda Kanan, now deceased, claim and assert that the said deed does not convey the lands described therein and is ineffectual for said purpose. Plaintiff says that said deed was made and delivered by the said Amanda Kanan' for a good and sufficient consideration to her, and the considerations and agreements for which said was made were fully complied with on his part, and that said Amanda Kanan intended and attempted to fully convey to him by said deed the said lands, reserving to herself a life estate therein. That the said claim of defendants is prejudicial and adverse to the claim of this plaintiff and his title."

This was followed by a prayer for the determination of title, and such prayer concluded with a prayer for general relief, just as did the prayer of the original petition. The judgment by default entered against John Wright "decreed that the said John Wright had no interest in real estate described in plaintiff's petition," and concluded with an adjudication of costs against him.

Wright preserved his emotion to dismiss by bill of exceptions, and he likewise so preserved his motion for new trial and in arrest of judgment. These are facts in addition to the general outline, supra. His appeal is from the judgment mentioned herein.

II. In the determination of this cause a consideration of the statute must be given. The origin of the statute was the act of 1897 (Laws of 1897, p. 74). This law became old section 650 of R. S. 1899. In 1909 (Laws of 1909, p. 343) the original statute was amended by the addition of the following language:

"And upon the trial of such cause, if same be asked for in the pleadings of either party, the court may hear and finally determine any and all rights, claims, interests, liens and demands whatsoever of the parties, or of any one of them, concerning or affecting said real property, and may award full and complete relief, whether legal or equitable, to the several parties, and to each of them, as fully and with the same force and effect as the court might or could in any other or different action brought by the parties, or any one of them, to enforce any such right, claim, interest, lien or demand, and the judgment or decree of the court when so rendered shall be as effectual between the parties thereto as if rendered in any other, different or separate action prosecuted therefor."

As so amended in 1909, it became section 2535 of R. S. 1909, and without change is now section 1970 of R. S. 1919. The original petition was filed and the suit brought to April term of the circuit court for the year 1920. It was therefore an action under the then...