Kroenke v. Frederich

• Decision Date: 14 March 1927
• Docket Number: 25977
• Citation: 292 S.W. 34
• Parties: KROENKE v. FREDERICH et al
• Court: Missouri Supreme Court

292 S.W. 34

KROENKE v. FREDERICH et al

No. 25977

Supreme Court of Missouri Division No. 2

March 14, 1927

Henry P. Lay and F. M. Brady, both of Warsaw, for appellants.

A. L Shortridge and George F. Longan, both of Sedalia, for respondent.

OPINION

HIGBEE, C.

This is an action against the appellants and the beneficiaries in two deeds of trust. The appellants' statement reads:

'Plaintiff brought this action to the March, 1924, term of the circuit court of Benton county, to the equity side, seeking cancellation of the instruments described in the petition.

'Briefly the petition alleges that on the 27th day of December, 1923 the defendants J. H. and Gladys V. Frederich, husband and wife, and hereinafter called the appellants, were the owners of 247 acres of land in Benton county; that on said date they executed a warranty deed purporting to convey said land to the plaintiff J. H. Kroenke, said deed containing a clause whereby the plaintiff assumed the payment of two deeds of trust on said land aggregating $ 25,000 (held by other appellants not appealing herein); that the appellants caused said deed to be recorded in the office of the recorder of deeds of said county.

'The petition alleges that said deed was executed and recorded without the knowledge or consent of the plaintiff (respondent); that he never purchased said land, never agreed to accept a conveyance thereof, never agreed to assume said incumbrances; that said deed was never delivered to or accepted by him; that he had no knowledge of its execution or its contents until some days after it was recorded; that he did not pay or agree to pay any consideration therefor; that said incumbrances are for an amount greatly in excess of the value of the land; and that said conveyance was executed and recorded by the appellants with the fraudulent purpose of making the plaintiff liable for the amount of said incumbrances.

'No other grounds for equitable relief are pleaded.

'The prayer of the petition is that said deed be cancelled and the title to the land reinvested in the appellants, and that the plaintiff be relieved from any liability under the assumption clause.

'The appellants in due time demurred to the petition upon the grounds, among others, that it did not state facts sufficient to constitute any cause of action, and that the petition shows on its face that the plaintiff has an adequate legal remedy.

'The demurrer was by the court overruled, and after a trial a judgment was rendered in favor of the plaintiff granting him the relief prayed for in his petition. From this judgment this appeal was duly perfected. No bill of exceptions has been filed, since the only error the appellants now present is the overruling of their demurrer.'

The petition was filed on January 10, 1924. It sets out in haec verba the warranty deed executed by the appellants conveying the 247 acres to the plaintiff. It recites that it is made subject to a deed of trust for $ 12,500, recorded at Book 140, page 115, of the Deed Records of Benton county, Mo., and a second deed of trust for $ 12,500, recorded at Book 138, page 615, of said records, both of which, with the interest thereon, the party of the second part (the plaintiff) assumes and agrees to pay as a part of the consideration for this deed. The deed was formally executed, acknowledged, certified, and filed for record in the office of the recorder of deeds on December 28, 1924. The appellants' demurrer was overruled. Thereupon separate answers were filed. The cause was tried to the court on March 27, 1924. The court found the facts as averred in the petition and entered judgment awarding relief as therein prayed. The only error complained of is the overruling of the demurrer to the petition.

Learned counsel contend that:

'Since the petition shows on its face that the plaintiff has a complete and adequate defense to any action at law based upon the assumption clause in the deed, he has shown no ground for the equitable relief sought.'

It is argued that:

'No reason whatever exists for equitable relief in this case, since the plaintiff is exposed to no hazard from future litigation at law. In a suit by any person upon the assumption clause in the deed in issue, the burden of proving respondents' liability will rest upon the plaintiff in that action, and to recover he must prove the contrary of all the allegations in the present petition, even though the instrument is not invalid on its face, since the invalidity of the assumption clause must inevitably appear from the proof offered.'

In support of this contention, counsel cite 9 C. J. 1191, where it is said:

'The fact that an instrument is void does not, of itself, furnish any reason why it should not be canceled. The occasions giving rise to the jurisdiction are mistake, fraud, and other instances where enforcing instruments or agreements would be inequitable or unjust. However, it has been held that, where the burden of proving the validity of the instrument rests on the person seeking its enforcement at law, and on such proof the invalidity of the instrument must inevitably appear, no reason whatever exists for granting equitable relief by cancellation, even though the instrument is not invalid on its face, and the proof must consist in extrinsic matters, the reason being that the complainant in equity is exposed to no hazard from future litigation.'

The majority rule as above announced is supported by the great weight of authority, including Summers v. Abernathy, 234 Mo. 156, ...