McKeighan v. Hopkins

• Decision Date: 19 January 1886
• Citation: 26 N.W. 614,19 Neb. 33
• Parties: MATTHEW MCKEIGHAN, APPELLANT, v. PITT H. HOPKINS, APPELLEE
• Court: Nebraska Supreme Court

26 N.W. 614

19 Neb. 33

MATTHEW MCKEIGHAN, APPELLANT, v. PITT H. HOPKINS, APPELLEE

Supreme Court of Nebraska

January 19, 1886

APPEAL from the district court of Johnson county. Tried below before BROADY, J.

Reversed.

T Appelget & Son, for appellant.

S. P Davidson, for appellee.

OPINION

MAXWELL, CH. J.

This case was before this court in 1883, and is reported in 14 Neb. 361, the judgment of the district court being reversed and the plaintiff given leave, upon the payment of all costs to amend his petition by filing a bill to redeem. An amended petition was filed by the plaintiff, to which the defendant filed an answer. On the trial of the cause the court found the issues in favor of the defendant, and dismissed the action. The plaintiff appeals.

The defendant contends that as the former action was at law the petition cannot be amended by substituting therefor an action in equity, and Carmichael v. Argard, 52 Wis. 607, 9 N.W. 470, Board of Supervisors v. Decker, 34 Wis. 378, Stevens v. Brooks, 23 Wis. 196, and Gorman v. The Judge, etc., 27 Mich. 138, are cited to sustain the position.

Sec. 144 of the code provides that, "the court may either before or after judgment, in furtherance of justice and on such terms as may be proper, amend any pleading, process, or proceeding by adding to or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved. And whenever any proceeding taken by a party fails to conform in any respect to the provisions of this code, the court may permit the same to be made conformable thereto by amendment."

Judge Bliss, in his valuable work on Code Pleading, sec. 429, says: "The supreme court of Wisconsin, in limiting amendments, has been somewhat strict in construing the term 'cause of action.'"

This certainly is true of the early decisions of that court. See cases cited in note 3, sec. 564, Pomeroy's Remedies, etc. At the present time, however, the tendency of decisions in that state seems to be in favor of a more liberal construction of the code. But, however this may be, the code abolishes the distinction between actions at law and suits in equity. If, therefore, an action at law is brought to recover a tract of land, the court certainly has the power to permit the plaintiff to amend his petition so that he may recover the same either at law or in equity. The right to be enforced is the same in either case--the recovery of the land, and so long as the identity of the cause of action is preserved the petition may be amended by stating such facts as the plaintiff may believe to exist in his favor, to entitle him to the relief sought. The restriction in the section above quoted does not refer to the form of the remedy but to the identity of the transaction. Spice v. Steinruck, 14 Ohio St. 213. Lottman v. Barnett, 62 Mo. 159. Hayden v. Hayden, 46 Cal. 332. Bullard v. Johnson, 65 N.C. 436. Robinson v. Willoughby, 67 N.C. 84.

In the case last cited an action of ejectment was brought to recover possession of the land. On appeal the court held that the deed was in fact a mortgage, and reversed the judgment in favor of the plaintiff. Prior to the second trial an amendment was permitted, changing the form of the action from ejectment to that of foreclosure of mortgage. See also Roberts v. Swearingen, 8 Neb. 363, 1 N.W. 305. Maxwell's Pl. and Pr. (4th ed.), 174, 175. The authority to grant leave to amend the petition, therefore, is clearly conferred.

1. The appellee claims, however, that even if it is conceded that the court had authority to authorize the amendment in question, still the statute of limitations would run against the cause of action until the amended petition was filed.

In Martin v. Coppock, 4 Neb. 173, it was held that the amendment of a mistake in the name of the plaintiff related back to the date of service; and this we think is the general rule. The plaintiff sought in the original petition to recover the land, because he was the owner thereof; and in the amended petition filed by him by leave of court he seeks to recover the land in question, upon the ground that he is the owner of the same, but while asking equity he offers to do equity by paying the defendant all valid claims held by him against the land. The cause of action is the same, although the relief is sought in a different manner from that in the first petition. This, however, does not change the cause of action, and the statute of limitation ceased to run when the summons which was served on him was issued, or if the service was constructive at the date of the first publication of the notice. Code, § 19.

2. It is claimed by the appellant that the appellee obtained the land in question by collusion and fraud. The testimony in the abstract tends to prove the following facts: That in the appraisement under the decree of foreclosure the value of the land in controversy was found to be $ 872.15.

Prior incumbrance, tax lien

$ 22.15

Tax title of Pitt H. Hopkins

Interest of Mathew McKeighan

$ 10.00

The land was sold to J. W. Buffum, one of the appraisers, for $ 156. Buffum testifies that he purchased the land and afterwards sold and conveyed the same by quit-claim deed to the appellee, and received $ 300 in cash. The attorney for the appellee when the appraisement was made testified on cross-examination, as appears by the abstract, as follows "Joseph Buffum, the purchaser at the sale above mentioned, is the same person who was one of the appraisers who actually appraised the land in controversy, and the sale was made under that appraisement. The sheriff or deputy sheriff consulted me as to the value of the incumbrances on the premises, and I think the incumbrances were valued in accordance with my suggestions and advice. Further than this I had nothing to do with the appraisement. I may have assisted in preparing the papers. I was the attorney for Hopkins in the foreclosure suit under which the land was being sold. I do not think I gave the sheriff the advice spoken of as the attorney of Hopkins. I know there was no other appraisement made on the land in controversy prior to the sale to Buffum." He also testifies that he was present, and did all the business for Hopkins, and that the purchase of the land by Buffum was a surprise to him. Hopkins also swears that "never a word passed between Buffum and myself about the appraisement or purchasing of the land. I was not there from before the foreclosure suit was begun until after the sale." He also testifies that he never authorized his attorney "to do anything in regard to the appraisement or selection of appraisers, or the writing of the appraisement. I simply put the mortgage in his hands for foreclosure in a legal manner."

It can make no difference so far as the liability of the defendant is concerned, whether he authorized his attorney to procure the interest of the plaintiff to be appraised at a merely nominal sum or not, as he cannot avail himself of such conduct without being charged with all the instrumentalities employed by his agent to effect the purpose. Joslin v. Miller, 14 Neb. 91, 15 N.W. 214. Elwell v. Chamberlin, 31 N.Y. 611. Nat. Exp. Co. v. Drew, 32 Eng. Law & Eq. 1.

A principal will not be permitted to accept and confirm so much of a contract made by an agent as he thinks beneficial to him and reject the remainder. N. E. Mtge. Sec. Co. v Hendrickson, 14 Neb. 159, and cases cited. The defendant, therefore, in obtaining the land for about one-third of its appraised value, is chargeable with the instrumentalities employed by his agent in the appraisal of the land. The property was to be appraised as belonging to the debtor. The statute authorizes the appraisers to deduct the value of liens, except those under which the property is being sold, from the gross value. But adverse titles cannot be...