Linders v. Linders

• Citation: 204 S.W.2d 229,356 Mo. 852
• Decision Date: 14 July 1947
• Docket Number: 40051
• Parties: Alma Linders v. Edwin Z. Linders, Jr., Appellant, and William LaBagge et al., Defendants
• Court: Missouri Supreme Court

204 S.W.2d 229

356 Mo. 852

Alma Linders v. Edwin Z. Linders, Jr., Appellant, and William LaBagge et al., Defendants

No. 40051

Supreme Court of Missouri

July 14, 1947

Rehearing Denied September 8, 1947.

Appeal from Circuit Court of St. Louis County; Hon. Fred E Mueller, Judge.

Affirmed.

Gloria Lee Miller and Henry C. M. Lamkin for appellant Edwin Z. Linders, Jr.; Cobb, Logan, Roos & Armstrong of counsel.

(1) The defendant's answer set out the facts whereby he claimed to be entitled to judgment, and prayed judgment. This constituted a cross-claim. Fulton v. Fisher, 239 Mo. l.c. 130; Dorris Motor Car Co. v. Coburn, 270 S.W 339; Campbell v. Spotts, 55 S.W.2d l.c. 990. (2) A reply is defined in Neal v. 12th and Grand Avenue Building Co., 70 S.W.2d 136; Ellison v. Missouri Power & Light Co., 59 S.W.2d 714. No reply was filed. (3) When no reply was filed to the defendant's cross-bill, the cross-claim must be admitted as true. Wollums v. Mutual Benefit Health & Accident Assn., 46 S.W.2d 259, 226 Mo.App. 647; State ex rel. Shartel v. Skinker, 25 S.W.2d 472, 324 Mo. 955. (4) The court erred in overruling defendant's motion for judgment on the pleadings. Secs. 32, 39, 41, 67, 68, 72, Laws 1943, Code of Civil Procedure. (5) Plaintiff not having replied was in default, and judgment on the pleadings was proper. Turner v. Browne, 173 S.W.2d 868; Leahy v. Mercantile Trust Co., 247 S.W. 396. (6) Negotiable instruments can only be discharged in certain ways: Secs. 3103, 3134, R.S. 1939. None of these ways were present. (7) A co-maker may further negotiate securities obtained before maturity: Heaton v. Dickson, 133 S.W. 159, 153 Mo.App. 312; Sec. 3065, R.S. 1939; Arthur v. Rosier, 206 S.W. 737, 217 Mo.App. 382; O'Day v. Sanford, 138 Mo.App. 343, 122 S.W. 3; Willis v. Barron, 45 S.W. 289, 143 Mo. 450; Wilson v. Schoenlaub, 12 S.W. 361, 99 Mo. 96; Klaiber v. Jorcke, 239 S.W. 880; Curry v. Lafon, 133 Mo.App. 179, 113 S.W. 246; Sater v. Hunt, 66 Mo.App. 527; Harding v. Hagler, 3 S.W.2d 289; Horn v. Nicholas, 201 S.W. 756. Edward Z. Linders did so negotiate the notes. Therefore the notes could not have been discharged. (8) The plaintif's admissible testimony did not make out a case, and the trial court erred under the law in permitting inadmissible testimony by the plaintiff to be given, over defendant's objection. Van Hoose v. Smith, 198 S.W.2d 23; Prasse v. Prasse, 77 S.W.2d l.c. 1005; Sexton v. Street Railway, 245 Mo. l.c. 275, 149 S.W. 21; Beaber v. Kurn, 91 S.W.2d 70, 231 Mo App. 22; Sec. 1887, R.S. 1939; Scott v. Scott, 265 S.W. l.c. 865; Wren v. Sturgeon, 184 S.W. 1036; Elsea v. Smith, 202 S.W. l.c. 1073, 273 Mo. 396. (9) A valid trust was created. Stein v. Natl. Bank of Commerce, 181 S.W. 1072; Dickson v. Maddox, 330 Mo. 51, 48 S.W.2d 873; Mendenhall v. Pearce, 20 S.W.2d 670, 323 Mo. 964; Meredith v. Meredith, 229 S.W. l.c. 180, 287 Mo. 250; Forster v. Clark, 171 S.W.2d 647, 351 Mo. 59; Jones v. Jefferson, 66 S.W.2d 555, 334 Mo. 606; Harris Bank v. Miller, 89 S.W. 629, 190 Mo. 640; Terry v. Glover, 235 Mo. 544, 139 S.W. 337; Cook v. Newby, 213 Mo. 471, 112 S.W. 272; Burke v. Adams, 80 Mo. l.c. 511. (10) Mrs. Haspel's authority to remove the notes and deed of trust from the safe deposit box is not subject to collateral attack by the plaintiff. Cook v. Newby, 213 Mo. 471, 112 S.W. 272; Burke v. Adams, 80 Mo. l.c. 511; Sec. 1887, R.S. 1939.

Herbert W. Ziercher for respondent.

(1) The appellant filed an answer only and did not file a counterclaim denominated as such, and hence no reply was necessary. Sec. 32 -- General Code of Civil Procedure, p. 369, Laws 1943; See definitions of "Denominate" and "Denominating" in accepted dictionaries. (2) An estate by the entirety is indivisible in nature and has no moieties. Payment of a deed of trust by one of the parties to an entirety estate therefore extinguishes the lien thereof upon the entirety estate. 4 Thompson on Real Property, pp. 329, 330; 41 C.J.S., pp. 33, 34; 9 Thompson on Real Property, p. 499; Meyers v. East End Loan & Savings Assn. of Baltimore City, 116 A. 452; In re Dell's Estate, 276 N.Y.S. 960; Wonderly v. Giesler, 118 Mo.App. 708; Gerardi v. Christie, 148 Mo.App. 75; Garner v. Jones, 52 Mo. 68; Wimbush v. Danford, 292 Mo. 588; Frost v. Frost, 200 Mo. 474; Sturdivant Bank v. Houck, 47 S.W.2d 135; Wells v. Estes, 154 Mo. 291. (3) Transactions by one party to an entirety estate in fraud or derogation to the rights of the other tenant by the entirety should be set aside. Hickman v. Link, 97 Mo. 482; Kohle v. Hobson, 215 Mo. 213; Newton v. Newton, 162 Mo. 173; Bordeck v. Kirsch, 216 S.W. 519. (4) The death of the principal ordinarily works an immediate termination of the authority of the agent by operation of law and terminates his authority under power of attorney. 2 C.J. 546; Holliday v. Clark, 110 S.W.2d 1110. (5) Rule of evidence regarding admissibility of statements by Edward Z. Linders, Sr., regarding his intentions respecting contents of safe deposit box. Rice v. Waddill, 168 Mo. 99; Zimmerman v. Schwerzler, 35 S.W.2d 381. (6) There was no delivery of the notes and deed of trust in issue by Edward Z. Linders, Sr., to any one after same were discharged and prior to his death. Coons v. Stanley, 94 S.W.2d 96; Newton v. Newton, 162 Mo. 173; Dunn v. German American Bank, 109 Mo. 90; Stone v. Stone, 18 Mo. 389.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

Action by Alma Linders, widow of Edward (or Edwin) Z. Linders, deceased, to cancel notes, $ 8900 balance principal, secured by a deed of trust on real estate situate on Manchester Road in St. Louis County. The notes had been executed by Edward Z. Linders and Alma Linders, plaintiff, as co-makers. Defendant Edwin Z. Linders, Jr., is the son of Edward Z. Linders by a former marriage. The other defendants are the trustee and the record beneficiary of the deed of trust, and the unknown holder or holders of the secured notes. It was alleged by plaintiff the notes had been paid by and delivered to a co-maker, her husband and defendant's father, but had been stolen by another and had come into the possession of some unknown person or persons. The defendants, other than Edwin Z. Linders, Jr., made default. Edwin Z. Linders, Jr. (hereinafter referred to as "defendant") filed answer alleging himself to be the owner and holder of the notes; he alleged the notes had not been paid but had been purchased by the co-maker, his father, and had been entrusted to another to be delivered to defendant upon the father's death. Defendant prayed for a determination of the ownership of the notes in him, for judgment for the balance of the principal, for a decree declaring the deed of trust to be a valid lien, and for a foreclosure. The trial court found the issues for plaintiff, rendering judgment cancelling the instruments. Defendant has appealed.

At the outset we are confronted by a contention the court should have entered judgment for defendant because plaintiff did not plead to the answer. It is said the answer was a cross-claim and, plaintiff not having filed an answer to the cross-claim, the trial court should have sustained defendant's motion for judgment for defendant on the pleadings. See Sections 32, 41, 67 and 68, Civil Code of Missouri, Laws of Missouri 1943, pp. 369, 371 and 376; and, generally, Vol. I, Carr, Missouri Civil Procedure, sec. 161, pp. 320-324. It is unnecessary to determine whether the defendant's answer constituted a cross-claim within the meaning of Section 32, Civil Code of Missouri, supra, requiring an answer to be filed thereto by a plaintiff. The record discloses that, when defendant urged his motion for judgment on the pleadings and before the trial court ruled on the motion, the issues of the case were discussed and analyzed by the trial court and by the parties, plaintiff and defendant; and the trial of the cause proceeded on the theory the plaintiff had denied the allegations of defendant's answer. Since the office of the pleadings is to define and to isolate the issues to those controverted so as to advise the trial court and the parties of the issues to be tried and to expedite the trial of a cause on the merits, the absence of a formal pleading traversing the allegations of the answer should not be considered prejudicial to a party defendant who understood what issues were being tried.

In order that the contentions of the parties on the merits of the appeal herein may be fully understood, it is necessary that we should make an extended statement of the evidence.

Alma Linders, plaintiff, and Edward Z. Linders were married at Union, Franklin County, October 29, 1924. The husband was then vested with the title to the real property described in the deed of trust mentioned supra. He conveyed the title to another who conveyed the property by warranty deed, dated August 6, 1930, to "Edward Z. Linders and Alma Linders his wife." A wholesale and retail market of foods, known as "Linders Market," was successfully conducted by Edward Z. Linders in a building on the lands described in the deed. The plaintiff wife worked at the market and assisted her husband in its management. The notes and the deed of trust (instruments in controversy) were executed by the husband and wife, Edward Z. Linders and Alma Linders, March 8, 1939; and on March 8, 1942, the aggregate principal then due and unpaid being $ 11,000, the husband and wife and the agent, John H. Armbruster and Company, Inc., of the holder of the notes entered into an agreement extending and renewing the obligation for a further period of three years. In 1944, Edward Z. Linders was in failing health, and the market (stock and fixtures only) was sold in June of that year for a consideration of $ 20,000, which sum was paid to the husband. ...