Knight v. Sutherland
| Decision Date | 05 April 1932 |
| Citation | 47 S.W.2d 785,226 Mo.App. 895 |
| Parties | HAROLD D. KNIGHT, APPELLANT, v. J. H. SUTHERLAND AND O. E. MITCHELL, RESPONDENTS |
| Court | Missouri Court of Appeals |
Appeal from the Cape Girardeau Court of Common Pleas.--Hon. Oscar A Knehans, Judge.
AFFIRMED.
Judgment affirmed.
John H Bradley, John A. McAnally and A. T. Welborn for appellants.
(1) The deed of trust owned by the Missouri State Life Insurance Company, and the trustee's deed thereunder, conveyed the land and all rights and incidents thereof, including the right to rent on the land after the foreclosure. Allen v Pullem, 10 S.W.2d 66; Farmers Bank of Hickory v. Bradley, 288 S.W. 774, 315 Mo. 811; Equitable Life Insurance Co. v. Bowman, 32 S.W.2d 126, 128; Johnson v. Cook, 96 Mo.App. 442, 70 S.W. 526; Mining Company v. Baker, 170 Mo.App. 457, 155 S.W. 456; Reed v. Swan, 133 Mo. 100, 34 S.W. 483; R. S. 1929, sec. 3075. (2 The attempt of Mitchell to let Sutherland have the use of the land for credit on the note he owed Sutherland, amounts to nothing more than an attempt by Mitchell to convey a right he did not possess or if he did, the same was cut out by the foreclosure, and Sutherland did not become a tenant so as to have any interest in the growing crop protected under the proviso to Section 3075, R. S. 1919, being the Missouri statute which protects, upon foreclosure of a mortgage or deed of trust, the interest of the tenant in the growing crop. Under the facts of this case the giving of credit by Sutherland to Mitchell was not payment of the rent so as to bring Sutherland within the proviso of the said statute. Citizens' State Bank v. Knott, 199 Mo.App. 90, 202 S.W. 278; Nichols v. Laffin, 105 Mo.App. 401, 79 S.W. 996; Johnson v. Murray, 289 S.W. 983. (3) And plaintiff could and did disregard the arrangement between Mitchell and Sutherland and sued for the value of the occupancy of the premises, which is their reasonable and customary rental value. Hunter v. Henry, 181 S.W. 597, 598. (4) The land was in fact cultivated for defendants by sharecroppers who received their share, and defendants, nor either of them were tenants within the meaning of the proviso to section 3075. Knott v. Citizens Bank, 199 Mo.App. 90, 94, 202 S.W. 279. (5) Defendant Sutherland cannot claim that he had no notice. The record of the deed of trust showed that it was in default. He admits that Mitchell owed him and he could not collect and that Mitchell told him he could not farm the place because of lack of funds. That which is notice and of record and that which by the ordinary care a man could have known, the law will consider that he knows. Vandeventer v. C. & A. Ry., 177 S.W. 838; Rittenhouse v. St. Louis, S. F. Ry., 252 S.W. 943, 299 Mo. 199. (6) It was error for the court to permit defendants to prove statements made by the witness Rose to the witness Sparks. These statements were merely hearsay, no part of the res gestae and were not contradictory of the testimony of Rose. Tate v. St. Louis Southwestern Ry., 201 Mo.App. 212, 209 S.W. 978; Wojtylak v. Coal Co., 188 Mo. 289, 87 S.W. 506. (7) It was error for the court to admit evidence that the reputation of the witness Rose for fair dealing is bad and error for the court to admit evidence by the witness Denbow that witness Rose had a bad reputation for truth and veracity at Marston, where he occasionally visited or transacted business, but thirty miles from his place of residence and eight miles from the place of residence of the witness Denbow. 45 Cyc. 2594; State v. Parker, 96 Mo. 390, 9 S.W. 728; Waddingham v. Huett, 92 Mo. 528, 5 S.W. 27; State v. Bugg, 316 Mo. 581, 292 S.W. 49. (8) The court erred in sustaining the demurrer to the testimony on the second count of the petition. Sec. 2590, R. S. 1929.
McKay & Peal and Ward & Reeves for respondents.
This action was commenced by attachment in the circuit court of Pemiscot County, and went on a change of venue to the Cape Girardeau Court of Common Pleas of Cape Girardeau County. The petition is in two counts. The first count seeks to recover rents on farm lands in Pemiscot County alleged to be due from defendants as plaintiff's tenants. The second count seeks to recover from defendants monies expended for the purpose of furnishing seed and feed to defendants, and to enforce the lien therefor under the provisions of Section 2590, Revised Statutes 1929. The attachment affidavit charges, as grounds for the attachment, that the defendants are removing, and have within the last thirty days, removed their property from the premises. The trial resulted in a judgment for defendants on both counts of the petition. Plaintiff appeals.
At the threshold of the case we are confronted with appellants' motion to strike out respondents' additional abstract of the record. The ground of the motion is that the additional abstract was not served fifteen days before the date set for the hearing of the cause, as required by rule 12 of this court. Appellant's abstract of the record was served in due time, that is, thirty days before the date of the hearing. Respondents' additional abstract was served eight days before the hearing. Appellant's abstract shows the filing of a motion for a new trial, sets out the motion in haec verba, shows the overruling of the motion by the court, and the exceptions of appellant thereto. All these matters are shown in the abstract as appearing in the bill of exceptions. Respondents' additional abstract shows that none of these matters appear in the bill of exceptions. In addition to this, the original bill of exceptions, brought here pursuant to the order of this court, is devoid of any mention whatever of a motion for a new trial. If we take the record as it actually exists, rather than as it is made to appear by the appellant's abstract, we are not permitted to review matters of exception. [Ross v. Kansas City, Ft. S. & M. R. Co., 141 Mo. 390, 42 S.W. 957; Kansas City v. Mastin, 169 Mo. 80, 68 S.W. 1037; Scott v. Kansas City L. & T. Electric R. Co., 256 Mo. 610, 165 S.W. 1101; Serrano v. St. Louis & S. F. R. Co., 150 Mo.App. 607, 131 S.W. 371; Hopper v. Fulbright, 174 Mo.App. 499, 160 S.W. 840; Ferguson v. Baker, 187 Mo.App. 619, 173 S.W. 41; Stevens v. Sexton, 10 Mo. 30; Landgraf v. Saunders Press Brick Co., 80 Mo.App. 538; Tarr v. Crump, 136 Mo.App. 464, 118 S.W. 488; Bohn v. Lucks, 165 Mo.App. 701, 147 S.W. 1112; Blanchard v. Dorman, 236 Mo. 416, 139 S.W. 395.]
Respondents excuse their failure to serve their additional abstract in time, as follows: "Owing to the high standing of counsel representing appellant, respondents did not...
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