Mathias v. Arnold
| Decision Date | 15 July 1915 |
| Parties | LILLIAN A. MATHIAS, Appellant, v. JAMES H. ARNOLD et al., Respondents |
| Court | Missouri Court of Appeals |
May 4 1915;
Rehearing Denied 191 Mo.App. 352 at 368.
Appeal from St. Louis City Circuit Court.--Hon. William T. Jones Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
P. P. Mason and John Cashman for appellant.
(1) Under the provisions of section 2534, Revised Statutes 1909, a separate ground of relief is due appellant on each charge made in her petition. (2) The threatened sale in this case need not constitute a cloud on the title; it is enough if the appellant is interfered with in any way in the absolutely free use and disposition of her property. Duncan v. Turner, 171 Mo.App. 677; The Charter Oak Life Ins. Co. v. Cummings, 90 Mo. 271. Under the amendment of the statute, an additional remedy was created for such cases as the present one. Neeley v. Bank, 114 Mo.App. 467. (3) The petition contains averments which show that in a contest between appellant and a purchaser at the execution sale, appellant would be required to introduce oral testimony and the petition alleges that she would be required to do so, and the demurrer admits that she would be required to do so; under this state of facts, the appellant is entitled to the relief sought. Payne v. Davis Co. Svgs. Assn., 126 Mo.App. 593; Carel v. Meek, 155 Mo.App. 337. (4) The appellant was entitled to the relief sought to prevent a cloud being cast upon the title of her property. Bonsor v. Madison County, 204 Mo. 99; Gardner v. Terry, 99 Mo. 523. Injunction will even lie in favor of a wife against a judgment creditor of her husband to prevent the sale of the wife's personal property under an execution against her husband, although at common law the husband, by marriage, acquires an absolute right to all the personal property in possession, belonging to the wife. And this rule was announced by our Supreme Court prior to the enactment of the Married Woman's Acts. Holhaus v. Hornbostle, 60 Mo. 439; Insurance Co. v. Cummings, 90 Mo. 271.
Otto F. Karbe and H. C. Whitehill for respondents.
(1) It is true, as appellant contends, that under the provisions of section 2534, Revised Statutes of Missouri, 1909, equitable relief may be granted where a cloud would be put upon title to real estate by sale under an execution against a person, partnership or corporation having no interest in such real estate subject to execution at the time of sale. The statute, however, does not define what constitutes a cloud upon title, nor does it say that every such sale of real estate under execution shall constitute such cloud; therefore, the statute in itself does not afford appellant any particular relief, except such as the general principles of law and equity may allow. (2) The right of the plaintiff to maintain her suit is based upon equity grounds alone, and unless the petition states facts which show she is affirmatively entitled to equitable relief, the demurrer of the defendant should be sustained. Considering the petition from its several allegations and as a whole, it will be seen that the ground of the action is apprehension by the plaintiff that a sale of the property would cast a cloud upon the title to her real estate. (3) In construing a demurrer, it is true that, in effect, it admits all material allegations of the petition, but it is likewise true that a demurrer does not admit immaterial matter nor conclusions of law. State ex rel v. Barnett, 245 Mo. 99; Donovan v. Boeck, 217 Mo. 70; Mo. Lincoln T. Co. v. Third Natl. Bank, 154 Mo.App. 89; Lackawanna C. & I. Co. v. Long, 231 Mo. 605, 614. Nor does a demurrer admit conclusions of the pleader on the facts constitutive of the cause of action, nor the correctness of averments concerning the meanings of the allegations pleaded in the bill. Donovan v. Boeck, 217 Mo. 70; State ex rel. v. Denton, 229 Mo. 187. Nor does a demurrer admit argumentative matter pleaded in a petition. Stonemetz v. Head, 248 Mo. 254. (4) Considering the allegations of the amended bill itself, we find that the ground of complaint is the alleged threatened cloud that would be placed upon plaintiff's title; but a cloud upon a title can only be created in accordance with certain well-recognized legal doctrines, i. e., the facts must be such as equity itself would pronounce them to constitute a cloud upon the title and force the owner to resort to extrinsic evidence to maintain his title as against the cloud. Where an instrument is of such character as to require "legal acumen" in order to determine whether it is a cloud upon the title, it is only then that a court of equity will interfere. 32 Cyc. 1312, 1315; 7 Cyc. 256; Taylor v. Swearingen, 161 Mo.App. 467; Carrel v. Meek, 155 Mo.App. 337; 6 Am. & Eng. Enc. Law (2 Ed.), p. 153. (5) As to whether equity will interfere in a given case, must first affirmatively appear from the petition that there is no adequate remedy at law, and in an action such as this, if plaintiff has an adequate legal remedy, she cannot maintain this suit. This is an elementary equitable principle and requires no citation of authority. (a) In actions such as this the comon-law remedy of ejectment is generally regarded as plain, adequate and complete, and a party will ordinarily be left to that remedy where it exists. 32 Cyc., p. 1312; Odle v. Odle, 73 Mo. 289; Railroad v. Nortoni, 154 Mo. 159. (b) To constitute a cloud upon the title, the deed or proceedings must be capable of embarrassing the title or coming within the chain of title; and where the invalidity of the instrument or matter complained of appears upon the face of the instrument or claim, equity will not interfere. 7 Cyc. 256; 6 Am. & Eng. Enc. Law (2 Ed.), p. 153; 32 Cyc., pp. 1315-16, and cases cited; Clark v. Ins. Co., 52 Mo. 272; Dunklin County v. Clark, 51 Mo. 60-62. (c) A bill in equity will lie to remove as a cloud on title a sale of land under execution where the invalidity of the sale can be shown only by extrinsic proof, but equity will not interfere to prevent or remove such sale as a cloud upon title when complainant's title is not affected thereby, and there is no necessity of resorting to extrinsic proof to show the deed's invalidity. 32 Cyc., p. 1322; 6 Am. & Eng. Enc. of Law (2 Ed.), p. 153; Merchants' Bank v. Evans, 51 Mo. 335; Clark v. Cooper, 148 Mo.App. 230.
This is a suit in equity seeking to restrain the threatened sale of real property belonging to plaintiff, a married woman, under an execution issued upon a judgment against her husband, and to release plaintiff's property from the levy of such execution. The defendants are the judgment creditor of the husband, for the attempted collection of whose judgment debt the execution was issued and levied, and the sheriff of the city of St. Louis who made the levy and who was proceeding to sell the property in question. The court below sustained a demurrer interposed by defendants to plaintiff's amended petition. Plaintiff declined to plead further, and final judgment having been entered upon the demurrer, plaintiff appealed. The court put into effect a temporary restraining order, holding the matter in statu quo pending the appeal.
The amended petition avers that plaintiff is the owner and in possession of certain tracts of land in the city of St. Louis, describing them, improved by four separate residence buildings; that on May 10, 1910, the defendant Arnold obtained a judgment in the circuit court of the city of St. Louis against one Colonel A. Mathias, in the sum of $ 1000 and interest, which judgment remains unpaid and unsatisfied; that on the day of November, 1912, defendant Arnold caused to be issued out of the office of the clerk of the circuit court of the said city of St. Louis, an execution upon said judgment directed to the defendant Louis Nolte, then the sheriff of said city, and directed and caused the latter to levy upon and seize, as the real estate and property of Col. A. Mathias, the real estate described, which, at the direction of defendant Arnold, was duly advertised for sale under such execution, and that the defendant sheriff was, at the time of the institution of this suit, proceeding to consummate such sale.
It is averred that the execution debtor, Col. A. Mathias, is the husband of this plaintiff; "that he never had, nor has he now," any interest in said real estate of plaintiff, subject to execution, and has only such interest therein "as he derives from being the husband of this plaintiff."
The petition then alleges that, if the threatened sale of plaintiff's real estate be so made, a cloud will be put on plaintiff's title thereto; "that because of the relationship of plaintiff as the wife of said Col. A. Mathias, and because he has assisted as her agent in the buying and selling of real estate in the said city of St. Louis, a widespread suspicion exists amongst the real estate dealer and others in the said city" that plaintiff's husband owns some interest in such real estate, and if said sale were consummated, plaintiff, before she could lease, mortgage or dispose of such real estate, would be compelled to institute a suit or suits to clear the title to the various parcels thereof.
It is further alleged that there are persons, associations and corporations organized in the city of St. Louis who practically control all of the real estate transactions therein; and that they have promulgated and established rules which will deprive plaintiff of the power to mortgage or dispose of her real estate, if sold under said execution, and that such sale would, on this account, destroy the selling, trading and loan value...
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