Long v. Long

• Decision Date: 31 October 1883
• Citation: 79 Mo. 644
• Parties: LONG v. LONG, Appellant.
• Court: Missouri Supreme Court

79 Mo. 644

LONG

v.LONG, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Adair Circuit Court.--HON. ANDREW ELLISON, Judge.

REVERSED.

O. D. Jones for appellant.

Wilson & Cover for respondent.

PHILIPS, C.

This is an action of ejectment for the recovery of about 470 acres of land. The answer is voluminous, containing many counts. It will only be necessary to a proper understanding of the opinion, to give the substance of the matters of defense.

The first count alleges that plaintiff claimed the land under a deed of quit-claim from one Goodman, who purchased at a trustees' sale made under a deed of trust given by defendant to C. H. and W. B. Bull, as trustees, to secure to L. and C. H. Bull, of Quincy, Illinois, a certain sum of money; that by the terms of said trust deed the trustees were seized and empowered to convey, as “joint tenants, and not as tenants in common;” that although said trustees joined in the advertisement of the land for sale, only one of them in fact was present at and conducted the sale alone; whereat the said Goodman became the pretended purchaser, through L. Bull, one of the cestui que trusts; that the trustee who conducted the sale was the son of one of the beneficiaries in the debt secured, and conspired with the beneficiaries to sell said property in bulk and at an unseasonable hour, when no bidders but one was present, and he, one of the said Bulls, and that the property was sold at about one-third of its value; that afterward both trustees made the deed to said Goodman, falsely reciting therein that both trustees were present at and conducted the sale; that said Goodman was not present at the sale, and the deed was made to him fraudulently to make it appear that he was an innocent purchaser; that the said trustees were both interested in the debt, one as a party named, and the other as a silent partner.

The second count alleges that on and prior to the 18th day of December, 1875, the said cestui que trusts were doing business as bankers at Quincy, Illinois, and as such foreign bankers they opened an agency at Edina, in this State, in the office of Linville & Bowen as their agents, who were appointed thereto by said banking association to make loans, etc., for them in this State, and did, through them, make loans of bank notes and money in this State to divers persons to the amount of $100,000, paying out the same by drafts and otherwise through their said agents; and did exact and charge large rates of usurious interest therefor; that defendant, through said agency, borrowed of said Bulls the sum of about $4,000, for which he gave the deed of trust aforesaid; that about the 27th day of November the said trustees proceeded to make the sale aforesaid as for a pretended forfeiture; that the plaintiff took said land from said Goodman under a quit-claim deed for the consideration expressed of $1. The answer then alleges that the said note and deed of trust are absolutely null and void because made in violation of the statute of this State, chapter 16 of Wagner's Statutes, entitled “Banking--Iilegal Currency.”

The next count alleges that when defendant consented to execute the said deed of trust it was with the understanding and in the behef that disinterested parties would be selected for such trustees; that said Bulls proposed that they would prepare the deed and notes, and forward same to their said agents at Edina, for signature and execution, that defendant is only an ordinary farmer, little comprehending the meaning of the numerous conditions put in said deed; that relying upon the honesty and good faith of said Bulls to place the name of suitable and disinterested trustees in said deed, he signed the same not knowing the relation of said trustees to the beneficiaries; that said Bulls inserted fraudulently, as trustee, the name of Charles H. Bull, one of the beneficiaries, by the designation of “C. H. Bull,” to deceive the defendant, and put in for the other trustee, W. B. Bull, who is the son and nephew of the beneficiaries respectively; that said trustees were in collusion with the beneficiaries in said deception, intending to do their bidding in the matter of discharging said trust. The answer then proceeds to set out in detail how on the day of the sale, the trustee, W. B. Bull, with his father, arrived from Illinois, rushed from the depot, and with outcry, and no one present, at an unusual hour, put the land up, when the said L. Bull bid the same off at the amount of the debt and interest and costs; that said Bull then went to Illinois, and the two trustees joined in a deed to said Goodman, who thereupon made the quit-claim deed to plaintiff, who took with full notice, etc.

The next count sets up, that by the laws of Illinois the said banking concern were not permitted to take real estate security for such loans, and had no power thereto, etc.

The reply was made in solido to all the counts, and begun thus: “Now comes plaintiff, and for reply, says he denies each and every allegation in said answer not herein admitted or otherwise pleaded to.” It then proceeded to set out the making of the loan of the $4,000, on the 18th day of December, 1875, and the delivery of the deed on the 30th day of December, 1875; that before the maturity of the notes the said Bulls, in the usual course of business for valuable consideration, sold and assigned said notes to said Goodman; that said transfer of said notes was before the breach of the conditions of the deed of trust. The reply then set up a subsequent sale of this property and the purchase thereof by plaintiff under another deed of trust, but as that occurred long after ouster laid, and this action was begun, it is not necessary to take further notice of it.

The defendant moved the court to strike out the reply for the reason, among others, that it is not responsive to the issues; that it neither confesses nor avoids; that it does not reply to each separate count; because the new matter constitutes no defense, and the answer is vague and uncertain and tenders no specific issue for trial. This motion was overruled, and thereupon the defendant filed motion for judgment on the pleadings. This the court also overruled.

So much of the evidence as is material to the decision of this case will be noticed in the opinion in its proper connection. The court, sitting as a jury, found the issues for the plaintiff, and assessed the damages at $500, and monthly rents at $50. The defendant has appealed to this court.

I. The reply in this case is bad pleading and ought to be discouraged. The reply to new matter in the answer is similar to the answer to the petition, and it may contain a general or special denial. Vansant. Plead., 408, declares that the “code allows the defendant to elect whether he will answer by a general or special denial, and having elected he is bound by it. He cannot answer in both ways.” Dennison v. Dennison, 9 How. Pr. 247, is cited in support. We are not prepared to say that both modes of pleading may not be employed in the answer or replication. But we do not hesitate to hold that when both are employed the denials ought to be so framed as to leave no doubt in the mind of the court and the adverse party as to what is denied and what is admitted. This course not only sharpens the issues, but it aids in the preparation of evidence and lessens expenses in bringing witnesses to meet matters not designed to be controverted at the trial. This reply says: “Plaintiff denies each and every allegation not herein admitted or otherwise pleaded to.” Then what is admitted or otherwise pleaded to? To determine this the opposing counsel and the court must go through the pleading analytically, step by step, to discover what perchance may be admitted or denied. Bliss Code Pleading, section 331, says the pleader should so frame the denial as not to leave his adversary to thus hunt through the plea to see what is or is not therein “admitted.” The object of pleading, especially under our code, is to form specific and definite issues of fact. When the answer, as in this case, tenders many issues of fact in different counts, affecting the integrity of plaintiff's title relied on as the basis of his recovery, he ought to answer all the allegations, either by denying or admitting them. The reply in this case is of a character which a party would employ who cannot conscientiously deny certain averments, and yet lacks the open candor to admit, knowing its injurious effect on his cause if admitted. Hence, being in doubt as to the course of safety, he adopts a duplex kind of plea, half denying, half confessing, so that he may insist on a denial or an admission as the one or the other may serve him in an emergency on the trial. Such pleading is vicious, and should be rectified by motion. The court should have so far sustained the motion in this case as to have compelled the plaintiff to make certain what he denied and what he admitted. The case was tried on the merits, however, and we will so review it.

II. The deed of trust in question recites that it was given to secure the payment of $4,000 represented by three promissory notes “of even date of this deed.” The first note is for $1,000, payable four years after date; the second is for $1,500, payable five years after date, and the third is for $1,500, payable six years after date; all of said notes “being payable with interest at the rate of ten per cent per annum from their respective dates until due, and at the rate of ten per cent per annum after due until the principal sums are paid;” both principal and interest payable at the banking house of said Bulls, in Quincy, Illinois. It is then recited in the deed of trust “the first payment of interest on each of said notes is to be made on the 1st day of April, 1876, for the period ending on that day, and thereafter the interest is to be paid semi-annually on the 1st days of October and April in each year.” It is thus perfectly clear that...