Macklin v. Kinealy

• Decision Date: 17 July 1897
• Citation: 41 S.W. 893,141 Mo. 113
• Parties: Macklin v. Kinealy, Appellant
• Court: Missouri Supreme Court

41 S.W. 893

141 Mo. 113

Macklin v. Kinealy, Appellant

Supreme Court of Missouri, First Division

July 17, 1897

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.

Affirmed.

M Kinealy and James R. Kinealy for appellant.

(1) The plaintiff can not sue defendant or recover damages from defendant on the claim that by the conveyances of defendant she lost title to that same land and lost that land. Com Co. v. Railroad, 126 Mo. 344; Nanson v. Jacobs, 93 Mo. 331; Estes v. Reynolds, 75 Mo. 563; Stoller v. Coates, 88 Mo. 514; Bradley v. Bringham, 149 Mass. 141; Farwell v. Mepers, 59 Mich. 179; Ewing v. Cook, 85 Tenn. 332; Bank v. Beale, 34 N.Y. 473; Fields v. Bland, 81 N.Y. 239. (2) The court, in his findings and judgment, wholly ignored the issue presented by the pleadings, and started a new issue of his own, and gave a judgment on that new issue. This deprived defendant of due process of law, in violation of the State Constitution, and was error. He can not try the case on one issue and decide it on another. Huston v. Tyler, 140 Mo. 252; Johnson Br. Co. v. Bank, 116 Mo. 567; Clements v. Yeates, 69 Mo. 625; Wiseman v. Culver, 121 Mo. 19; Brooks v. Yocum, 42 Mo.App. 516; Tomlinson v. Ellison, 104 Mo. 105; Hart v. Leete, 104 Mo. 315; Harper v. Morse, 114 Mo. 317. (3) The court gave a judgment for an incumbrance put on the land, although there is no evidence that anything was ever paid to remove such incumbrance, and it is admitted that when this suit was brought, nothing had been paid on that account, or on any other account. A suit for damages, because of the existence of an incumbrance on land, can only be brought after something has been paid to remove the incumbrance (and this payment must be alleged in the petition), hence the court's action was error. Hunt v. Marsh, 80 Mo. 398; 5 Ency. of Pl. and Pr. 373; 18 Am. and Eng. Ency. of Law, 167. (4) The so-called assignment was erroneously admitted in evidence, as it assigned no right to sue for damages occasioned by loss of the land, and hence plaintiff could not maintain this suit; and the court erred in not excluding it.

T. J. Rowe for respondent.

(1) Ann Macklin was the rightful and equitable owner of the land in question, and what she lost by the erroneous decree of the circuit court should be restored to her. Kinealy v. Macklin, 89 Mo. 435. (2) For reasons of public policy the conveyance of Kinealy to Sutherland, trustee for Sanderson, is upheld, and by such conveyance Ann Macklin lost her title and her property, which became, after trustee's sale, vested in Sanderson, and Ann Macklin or her assignee, Mary Macklin, must recover what she has lost by action against Kinealy. Macklin v. Allenberg, 100 Mo. 346.

Brace, J. Barclay, C. J., Macfarlane and Robinson, JJ., concur.

OPINION

Brace, J.

This is an appeal from a judgment of the St. Louis circuit court in favor of the plaintiff for the sum of $ 3,900. The following is the finding of the facts and the conclusions of law made by the trial court in writing at the request of the defendant, under the provisions of section 2135, Revised Statutes 1889:

"FINDING OF FACTS.

"(1) That one William B. Ferguson, in the year 1873, brought suit on a note of $ 542.95 against one Patrick Macklin et al. (2d) That said Patrick Macklin, at the time of the institution of said suit, was possessed of certain real estate described in the petition, and that while said suit was pending in court, the said Patrick Macklin conveyed said real estate to one Francis L. Haydel, as trustee, for the sole and separate use of his wife, Ann Macklin. (3d) That on the ninth day of December, 1873, the said Ferguson recovered judgment on said note against the said Macklin et al. for the sum of $ 626, and execution was issued thereon. (4th) That under said execution the sheriff of the city levied upon and sold a certain portion of lot No. 2 and a certain portion of lot No. 4 of said real estate of said Patrick Macklin, which said portions are particularly described and set forth in plaintiff's petition, and that at such sale Michael Kinealy, the defendant herein, became the purchaser of said portions of said lots, and a deed therefor was duly made and executed to him by the said sheriff. (5th) That immediately after the conveyance of said lots by the sheriff to said M. Kinealy, the latter filed his bill of equity in the circuit court of the city of St. Louis against the said Patrick Macklin and Ann Macklin his wife, and Francis L. Haydel, trustee, to set aside and annul the deed from Patrick Macklin to Haydel, trustee, for the use of Ann Macklin, above mentioned. (6th) That said Michael Kinealy, in said suit obtained a decree in his favor in the said circuit court, and thereafter obtained possession of the premises, and the title in and to said premises was by the said decree vested in said M. Kinealy. (7th) That on March 5th, 1879, the said Kinealy and his wife conveyed said real estate to J. W. Sutherland, as trustee, to secure a loan of $ 2,000, and that on the 10th day of May, 1883, the said Sutherland by virtue of said deed of trust, on Kinealy's failure to pay the amount due on and secured by said deed, conveyed said real estate to one Margaret A. Sanderson. (8th) That thereafter Ann Macklin and Patrick her husband sued out a writ of error in the St. Louis Court of Appeals In re Kinealy v. Macklin, and that the said decree was afterward affirmed in the said court of appeals, and that thereafter the said Ann Macklin and Patrick, her husband, sued out a writ of error from the Supreme Court of the State of Missouri in said cause, and the decree of the circuit court of the city of St. Louis in said cause was in the Supreme Court reversed and the plaintiff's bill dismissed on the 18th day of March, 1886, and the said Kinealy was in the Supreme Court ordered to restore to the said Ann Macklin all things and lands she had lost by the aforesaid decree of the circuit court. (9th) That on January 29th, 1886, the said Ann Macklin and her trustee conveyed by deed all her title and interest in said premises to the plaintiff, and further, on the 30th day of January, 1886, assigned in writing, duly executed, her cause of action herein to the plaintiff Marie Macklin, a copy of which assignment is fully set out in defendant's answer. (10th) That the said Marie Macklin, after the decision of the Supreme Court, instituted different suits to regain the possession of the said real estate, and finally obtained possession of same by compromise in year 1893, upon the payment of the sum of $ 4,000. (11th) That the said real estate in 1879 was of the value of over $ 5,000, and now is, and at the time of the compromise was, of the value of about $ 8,000, and plaintiff and her assignor lost by reason of the decree obtained by the defendant Kinealy in the circuit court aforesaid, the sum of at least $ 4,000, but plaintiff is now only claiming the $ 2,000 obtained by defendant on this deed of trust, with 6 per cent interest from that date. (12th) That this suit was instituted by plaintiff on the 5th day of March, 1891.

"CONCLUSIONS OF LAW.

"(1st) M. Kinealy, having purchased the premises in question, and having obtained a decree in equity vesting the title in him in his suit against the Macklins, from which no appeal was taken, became the absolute owner of the property, and the deed of trust by him to Sutherland, under which he obtained a loan of $ 2,000, was legal and valid, as was also the conveyance to Sanderson under and by virtue of a sale under said deed of trust. (2d) The writ of error sued out In re Kinealy v. Macklin in the Supreme Court, was in law a new suit, and could not divest any bona fide purchaser of the title acquired from Kinealy; but the reversal of said cause by the Supreme Court and dismissal of Kinealy's bill, vested in said Ann Macklin the ownership of all property acquired by Kinealy and not disposed of by him, and made him liable in damages for any property disposed of by him, before such reversal in the Supreme Court. (3d) The proceeding brought by Marie Macklin under the deed from Ann Macklin, to recover the possession of the premises from Allenberg et al., and her subsequent compromise with the defendants in said cause and other cases, did not estop her from maintaining the present suit. (4th) The assignment from Ann Macklin and Patrick Macklin, her husband, set out in defendant's answer, is...