Long v. Long

• Decision Date: 16 November 1897
• Citation: 44 S.W. 341,141 Mo. 352
• Parties: Long, Plaintiff-Appellant, v. Long et al., Defendant-Appellants
• Court: Missouri Supreme Court

44 S.W. 341

141 Mo. 352

Long, Plaintiff-Appellant, v. Long et al., Defendant-Appellants

Supreme Court of Missouri

November 16, 1897

Appeal from Knox Circuit Court. -- Hon. Benjamin E. Turner, Judge.

STATEMENT.

The following are copies of one of the notes and one of the coupons mentioned in the opinion as secured by the deed of trust wherein the Messrs. Bull were trustees. The other notes and coupons so secured are in the same general form, the only changes being in dates, amounts and times for payment:

"NOTE.

"Quincy Ills., Dec. 18th, 1875.

"Four years after date I promise to pay to the order of L. and C H. Bull, fifteen hundred dollars, for value received, with interest thereon at the rate of ten per cent per annum from this date until due, at the rate of ten per cent per annum after due until the said principal sum is fully paid -- both principal and interest being payable at the banking house of L. and C. H. Bull in Quincy, Ills., with the current rate of exchange on New York. The first payment of interest 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 semiannually on the 1st days of April and October in each year, until the last payment of interest, which is to be made for the remaining period on the day of the maturity of this note. Interest coupons for the payment of said interest are also hereunto annexed. The holder of this note may extend the time for the payment of the whole or any part thereof on the maker executing coupons for interest to accrue thereon during such extension at a rate not exceeding ten per cent per annum, payable the dates herein named for the payment of interest. Such coupons to be also hereto annexed and to be evidence of such extension.

"This is one of a series of (3) promissory notes of even date herewith, executed by and payable to the same parties, for an actual loan of money amounting in the aggregate to the sum of $ 4,000, and secured by a deed of trust of the same date upon real estate situate in the county of Knox, and State of Missouri, under the provisions of which deed should the maker of the said promissory notes fail to pay the legal holder or holders thereof any of the principal sums payable thereby, or any installment of interest on any of said principal sums at the respective times when the said principal sums or any of them or any of the said installments of interest thereon shall become due and payable by the tenor and effect of the said promissory notes and the said original interest coupons respectively, or as the said principal or any part thereof or interest thereon may become payable by and during any such extension, the trustees named in such deed, or either of them or the survivor of them, or the executors or administrators of such survivor, may in that case at once proceed to sell the trust property at public sale for cash on the publication of a notice of the sale at least thirty days prior thereto, and from the proceeds of the sale pay all of the said principal sums, payable by the said three promissory notes with the interest thereon computed to the day of sale, so far as the same may then remain unpaid, together with the costs and expenses of the said trust and sale.

"Joseph Long."

"COUPON.

"Loan No. 1065. No. (1) coupon 9.

"Due L. and C. H. Bull or order on the 1st day of April, 1880, seventy-five dollars payable without grace at the banking house of L. and C. H. Bull in Quincy, Ills., with current rate of exchange on New York, being for the payment of interest due that day on my note to L. & C. H. Bull of even date herewith for the sum of fifteen hundred dollars payable five years after date. If this coupon is not paid at maturity, then it is to bear interest at the rate of ten per cent per annum from date until paid. "Joseph Long.

"Quincy, Ills., Dec. 18th, 1876."

Reversed (with directions).

O. D. Jones for defendant-appellants.

(1) Defendant's motion to compel plaintiff to elect should have been sustained. At least two distinct causes of action are stated in the petition; one on the Bull claim that "arises in such cases by operation of law;" the other on deed, mortgagee against mortgagor, plain legal case to foreclose. The two deeds and debts are of different dates, for different amounts to different payees, claimed and held by plaintiff under different titles, and draw different rates of interest. Riley v. McCord, 24 Mo. 265; Mason v. Barnard, 36 Mo. 385; Smith v. Finn, 77 Mo. 499; Humphreys v. Mill Co., 98 Mo. 542; R. S. 1889, sec. 1989; Mitchner v. Holmes, 117 Mo. 185; Childs v. Railroad, 117 Mo. 414. (2) A party can not sue on express contracts and recover on an implied assumpsit. Christy v. Price, 7 Mo. 430; Davidson v. Biermann, 27 Mo.App. 655; Clark v. Kane, 37 Mo.App. 259; Mansur v. Botts, 80 Mo. 651; Moore v. Gause & Sons, 113 Mo. 98. (3) Suit on the Bull claim is barred by the statute of limitation of five years. "Subrogation arises in such cases by operation of law." Long v. Long, 111 Mo. 12; 15 Am. and Eng. Ency. of Law, 864; Bauer v. Gray, 18 Mo.App. 164; Bishop on Contracts [1887 Ed.], 199, 203; Grey v. Bonnet, 3 Met. 522; Sheldon on Subrogation, sec. 4; McDaniels v. Lee, 37 Mo. 204; Singleton v. Townsend, 45 Mo. 379; Hopewell v. Kerr, 36 N.E. 48; Roeder v. Keller, 35 N.E. 1014; Windom v. Howard, 26 S.W. 175; Plett v. Wilson, 31 N.E. 336; McNighney v. Frazee, 27 N.E. 431; Ingram v. Same, 16 N.E. 868; Romey v. Stroughten, 13 N.E. 833; Adair v. Adair, 78 Mo. 630-633. (4) Defendant objects to the written assignment to the Bulls on the back of the notes, on grounds no assignee or grantee is shown. R. S. 1889, secs. 4832, 4847, 2532, 4876, 4877; Railroad v. Kimmel, 58 Mo. 83; Smith v. Beattie, 57 Mo. 281; Douthitt v. Stinson, 63 Mo. 268. (5) The court erred in excluding the testimony of O. D. Jones to the trial of the motion in the case, in the Marion county circuit court. It simply shows the understanding of the parties as to the nature of the trial; if the motion was sustained, it was final that the case was argued, and the terms on which submitted. This evidence is competent to go with and explain the record. In some cases it is even permissible for the parties to show by oral evidence what facts were in issue and were tried. (6) No step to legally assert the Howerton claim in a manner the court could recognize and enforce was ever taken until filing the amended petition June 15, 1893. His "attitude" to defendant debarred him from prosecuting the claim. 12 Am. and Eng. Ency. of Law, p. 559; Thayer v. Swift, Walk. Ch. (Mich.) 384; Jones v. Williams, 5 Coldw. (Tenn.) 371; Ayers v. Morehead, 77 Va. 586; Caloway v. Alexander, 8 Leight. (Va.) 114; Ives v. Sargent, 119 U.S. 652; Haxham v. Lewleyn, 21 W. R. 766; Biert v. Leaton, 101 Ill. 242; Burgess v. Railroad, 99 Mo. 496-508; Murphy v. De France, 105 Mo. 53-69; Ferguson v. Soden, 111 Mo. 208-215; Bett v. Brown, 101 Ill. 243. (7) The amended petition, filed June 15, 1893, changes the cause of action before stated, and lets in the defense of the statute of limitation of ten years. Scoville v. Glassner, 79 Mo. 449; Parker v. Rodes, 79 Mo. 88; Lumpkin v. Collier, 69 Mo. 170; Blake v. Minkner, 36 N.E. 246; Railroad v. Jones, 37 N.E. 247; Sweet v. Jeffries, 48 Mo. 279. (8) The bull claim is barred by limitation of five years and of ten years. It is res judicata under the Marion county judgment, or it is barred by the failure to reinstate the cause in one year. It is stale, barred by laches, and inequitable. Huthsing v. Maus, 36 Mo. 109; R. S. 1879, sec. 3556; R. S. 1889, sec. 2084; Reed v. Reed, 39 Mo.App. 473; Kennedy v. Ballard, 39 Mo.App. 340; Sachase v. Clingingsmith, 97 Mo. 406. (9) Since plaintiff elected to amend he is now in the place of any other litigant who has rescinded sale or transaction and subject to the rules of law applicable in such cases. The general rule in such cases is, he must restore defendant to his statu quo. 21 Am. and Eng. Ency. of Law, pp. 77-84-89. Since he is still mortgagee in Howerton deed we do not claim he must restore possession; but all else that came to him by reason of the sale he must. For restoration is an "absolute condition precedent to the exercise of the right to rescind, whether done with or without the intervention of the court." Melton v. Smith, 65 Mo. 315-324; Jarrett v. Morton, 44 Mo. 275; Estes v. Reynolds, 75 Mo. 563-565. (10) Three defenses are pleaded to the recovery of interest: First. That the plaintiff can not have any interest on the money bid at the Howerton trustee's sale while he claimed and held under it; second, that the contract for interest in the Bull deeds, notes and coupons is usurious, and as to interest on it, if any, plaintiff paid, he was volunteer and can not recover for it; third, that note in the Howerton debt is barred by statute, and the debt as recited in the deed only draws six per cent. 3 Am. and Eng. Ency. of Law, pp. 542-544, 549, and cases cited; Stix v. Mathews, 63 Mo. 371; Golson v. Ebert, 52 Mo. 260; Roach v. Type Foundry, 21 Mo.App. 118; Stix v. Mathews, 75 Mo. 96; Johnston v. Gawtry, 83 Mo. 339.

Blair & Marchand and W. C. Hollister for plaintiff-appellants.

(1) The defendant Jo. Long could not object to others being made parties defendants. Alnutt v. Leper, 48 Mo. 319-322. (2) Davis, Jones and others are necessary parties. R. S 1889, secs. 1992, 1993, p. 527; sec. 2099, p. 552; secs. 7084, 7085, p. 1653; 2 Story, Eq. Jur. [13 Ed.], sec. 1526, p. 853; Burke v. Flournoy, etc., 4 Mo. 116, 117; Potter v. Stevens, 40 Mo. 229, 233, 234; Olmstead v. Tarsney, 69 Mo. 400; Bank v. N. Mo. Coal Co., 86 Mo. 125. (3) The filing of the second amended petition was not the beginning of the suit. Mann v. Schroer, 50 Mo. 307. (4) The most important...