Marston v. Catterlin
| Decision Date | 19 November 1921 |
| Citation | 234 S.W. 816,290 Mo. 185 |
| Parties | EDWIN W. MARSTON, Plaintiff in Error, v. LUCH CATTERLIN, Administratrix of Estate of JOHN M. CATTERLIN |
| Court | Missouri Supreme Court |
Appeal from Bates Circuit Court. -- Hon. C. A. Calvird, Judge.
Reversed and remanded.
Bowersock & Fizzell and Chastain & Smith for plaintiff in error.
(1) The adjustment of the accounts between plaintiff and Catterlin was the only question properly before the circuit court. Citizens Bank v. Donnell, 195 Mo. 564; Keaton v Jorndt, 159 Mo. 179; Rees v. McDaniel, 131 Mo 681; State ex rel. Wattenbarger v. Lamb, 174 Mo.App 360; Ward v. Haren, 183 Mo.App. 569; Meyer v. Bobb, 184 S.W. 105; Keltner v. Harris, 204 S.W. (Mo. App.) 561. (2) The decision of the Supreme Court that plaintiff is entitled to the proceeds of the Bates County land is the law of the case. In re Potts, 166 U.S. 263; In re Fork & Tool Co., 160 U.S. 247; Scott v. Imp. Co., 255 Mo. 76; Benton v. St. Louis, 248 Mo. 98; Chapman v. Railroad, 146 Mo. 481; Railroad v. Bridge Co., 215 Mo. 286. (3) The Statute of Limitations does not run pendente lite. State ex rel. Brown v. Wilson, 216 Mo. 215; Courtney v. Blackwell, 150 Mo. 245; Long v. Long, 141 Mo. 352; Southwest Nat. Bk. v. McDermand, 187 S.W. 121. (a) The suit is not for money only. (b) The claim to the proceeds of the land did not arise at the time of the sale by Catterlin in 1904. MacMullan v. Kelly, 124 P. 93; Murray v. King, 153 Mo.App. 710; Watson v. Payne, 149 Mo.App. 721; Canada v. Daniel, 175 Mo.App. 55. (c) The action was commenced in 1903, not in 1912. (4) Defendant has waived the Statute of Limitations as a defense by the failure to plead it upon the filing of the supplemental petition in 1912. Whiteside v. Magruder, 75 Mo.App. 364; Boyce v. Christy, 47 Mo. 70; Bank v. Clifton, 263 Mo. 200; American Radiator Co. v. Heating Co., 211 S.W. 56; McClintock v. Robertson, 136 S.W. 975; Orke v. McManus, 129 N.W. 68; Ingold v. Symonds, 111 N.W. 802; Wheeler v. Aberdeen, 92 P. 135; Pickel Stone Co. v. Wall, 108 Mo.App. 495; Lyman v. Harvester Co., 68 Mo.App. 637; Ficener v. Bott, 47 S.W. 251; In re Cook's Estate, 122 N. W. (Ill.) 578. (5) The circuit court erred in striking out of the amended supplemental petition all reference to the Jackson County land. Massie v. Watts, 6 Cranch (U.S.) 148; Muller v. Dows, 94 U.S. 444; Savings Bank v. Houchens, 115 F. 96; Wilhite v. Skelton, 149 F. 67, 78 C. C. A. 635; Salton Sea Cases, 172 F. 792, 97 C. C. A. 214, 215 U.S. 603; Clark v. Fruit Co., 185 F. 604; McCune v. Goodwillie, 204 Mo. 306; State v. Jackritz, 166 Mo. 307; Olney v. Eaton, 66 Mo. 563.
W. O. Jackson and Silvers & Silvers for defendant in error.
(1) The Court of Appeals had no jurisdiction in the premises, because the title to certain real estate located in Jackson County, is involved, and will be affected by any judgement that might be rendered in this matter. Kemmel v. Nine, 121 Mo.App. 718. (2) In the second amended supplemental petition, filed by plaintiff in error in the Circuit Court of Bates County in 1917, such plaintiff sought to compel a conveyance of land in Jackson County, by the defendant, and if he failed, to divest him of title and vest same in plaintiff; and the circuit court of such county had no jurisdiction over land in Jackson County, R. S. 1909, sec. 1753; Ensworth v. Holly, 33 Mo. 370; Carr v. Lewis Coal Co., 96 Mo. 155; State ex rel. v. Meunch, 225 Mo. 210, 222; State ex rel. v. Grimm, 243 Mo. 673; State ex rel. v. Reynolds, 265 Mo. 94, 190 Mo.App. 618; Castleman v. Castleman, 184 Mo. 438. (3) A court of equity has extra territorial jurisdiction when the proceeding is purely in personam. It has no jurisdiction over property in a proceeding in rem, where such property is beyond the jurisdiction of the court. State ex rel. v. Meunch, 225 Mo. 210, 224. (4) This proceeding against Lucy Catterlin was not a personal proceeding, but purely a proceeding in rem in so far as it affected the land in Jackson County, and the Circuit Court of Bates County was powerless to enforce a proceeding in rem against such property. R. S. 1909, sec. 1753; State ex rel. v. Reynolds, 265 Mo. 94; State ex rel. v. Grimm, 243 Mo. 673. No claim was made for the proceeds for more than seven years after the sale of the land. The contention had always been for the land in specie. This claim for the proceeds made seven years after the land was sold was clearly barred by the five-year Statute of Limitations. Simms v. Field, 24 Mo.App. 557; Baker v. Railway, 34 Mo.App. 98; Lumpskin v. Collier, 67 Mo. 170; Anderson v. Cahoon, 193 Mo. 547. (5) The amended supplemental petition filed in 1917 was so different that the evidence introduced to sustain the original bill filed by plaintiff would not prove or support the allegations of the amended supplemental petition. Such amended supplemental petition being new, the Statute of Limitations runs from the time the cause of action originated as set out in the new and substituted petition. Wasson v. Roland, 136 Mo.App. 629; Henan v. Glann, 129 Mo. 325; Lumpskin v. Collier, 69 Mo. 170; Scoville v. Glasner, 79 Mo. 449; McHue v. Transfer Co., 170 Mo. 85; Simms v. Field, 24 Mo.App. 557. (6) The plaintiff's right of action for the proceeds of this land, if any he had, accrued when he took a note for the sale of the land or when the proceeds were invested in the Jackson County land in 1905. (7) No claim or contention was made for the Jackson County land or any interest therein until 1917, more than ten years after the land was put in the name of John M. Catterlin and a record thereof made in the recorder's office in Jackson County. Such claim was barred by the ten-year Statute of Limitations. (8) There was no concealment on the part of Catterlin so as to toll the running of the statute, because his trust deed on the Bates County land was filed of record in 1904 and his deed to the Jackson County land was filed of record in 1905. Plaintiff was bound to take notice of these records. Hudson v. Cahoon, 193 Mo. 547; Johnson v. Ry., 243 Mo. 297. (9) The five year Statute of Limitations runs as against a resulting trust. Hudson v. Cahoon, 193 Mo. 547; Johnson v. Ry. Co., 243 Mo. 300; Landis v. Saxon, 105 Mo. 489; Bank v. Barker, 145 Mo. 356; Johnson v. Ry., 243 Mo. 279, 294. (10) The Statute of Limitations can be invoked as against new matter set up in the amended petition. Hudson v. Cahoon, 193 Mo. 547; Simms v. Field, 24 Mo.App. 557; Baker v. Ry., 34 Mo.App. 98; Gibbons v. Steamboat, 40 Mo. 253; Wasson v. Roland, 136 Mo.App. 627; Lumpskin v. Collier, 69 Mo. 170. (11) The defendant had the right to answer or demur to any pleading filed by the plaintiff under the last decision of the Supreme Court. Ward v. Haren, 183 Mo. 569.
Plaintiff brought an action in the Circuit Court of Bates County, on December 3, 1903, against John M. Catterlin, praying the court to set aside a sale under a deed of trust and to cancel the trustee's deed conveying a tract of about eighty-seven acres in said county to Catterlin, or to allow him to redeem the same, with an accounting for the rents and profits, and for general relief. On the trial of the cause on December 12, 1904, the court found for the defendant. On appeal this court, on February 5, 1912, reversed the judgment and remanded the cause, holding that the property should be awarded to the plaintiff, subject to a certain claim of the defendant for reimbursement, and that the defendant must account for the rents and profits. [Marston v. Catterlin, 239 Mo. 390, 144 S.W. 475.]
On June 11, 1912, plaintiff filed an amended petition stating, inter alia, that during the pendency of the action Catterlin had conveyed the land, and that by mesne conveyances the title had vested in one Joseph Hodnett, who was made a co-defendant to the action. The amended petition also prayed the cancellation of said conveyances as fraudulent and without consideration, or, if Hodnett should be held to be a purchaser in good faith, that Catterlin be required to account for the proceeds of the sale of the land and for rents and profits and for general relief. On December 2, 1914, judgment was rendered that plaintiff was entitled to the land, subject to a lien in favor of Hodnett for $ 348.10 with interest, and that plaintiff was not entitled to the proceeds of the sale of said real estate, from which judgment plaintiff and Hodnett appealed. On February 2, 1917, this court reversed the judgment and remanded the cause with directions to the trial court [Marston v. Catterlin, 270 Mo. 5, 192 S.W. 413.]
On April 26, 1917, plaintiff filed a second amended petition alleging, in addition to the averments in the former petitions, the result of the second appeal, that Catterlin (who was made sole defendant) had received from Hodnett over $ 2000 as the purchase price of the Bates County land and had also received in exchange and as part of the consideration therefor a tract of three and one-half acres in Jackson County, and that he held said last named tract in trust for plaintiff. The petition prayed that Catterlin be required to account for the rents and profits of said eighty-seven acres of land, and for all the proceeds he had received from the sale thereof, and that he be required to convey to plaintiff the said three and one-half acres in Jackson County, and in default thereof that the title to said premises be divested out of defendant and vested in fee in plaintiff (subject to a lien in favor of def...
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