Mead v. Knox

• Decision Date: 31 October 1848
• Citation: 12 Mo. 284
• Parties: MEAD & BEEKMAN v. KNOX.
• Court: Missouri Supreme Court

12 Mo. 284

MEAD & BEEKMAN

v.KNOX.

Supreme Court of Missouri.

October Term, 1848.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

GOODE & GLOVER, for Appellants.

1st. That though the transaction mentioned in the pleadings, may appear upon its face in the assumed character of an absolute sale, yet the testimony proves that at the time it was intended by the parties, and was merely a mortgage for the security of advances made by the defendant, and the court will so treat it, it being a question of fraud. 2nd. That the paper purporting to be signed by one of the complainants, giving the transaction another and different character from that asserted in the bill, cannot be viewed by this court in its weight of testimony, as testimony, because it is the admission of one partner against his co-partner, after the dissolution of partnership. Baker v. Starkpoole, 9 Cowen, 433; Chapin v. Coleman, 11 Pick. 331; Hopkins v. Banks, 7 Cowen, 650; Wiggins v. Hammond, 1 Mo. R. 121; Owings v. Loid, 5 Gill & Johns. 136. 3rd. Nor can the court view it in any aspect, or as proving a want of interest in one of the parties complainants, in the subject matter of the suit so as to justify the court below in its dismissal of the bill. 4th. A court of equity never dismisses a bill for want of proper parties, nor, 5th. As a necessary corrollary for joinder of improper parties. 6th. If the question could be raised before the court at all in this manner, the proper course of the court below was to have allowed the complainant, Garrett T. Beekman, an opportunity for amendment. Lloyd v. Makeam, 6 Vesey's Ch. R. 144; Greene v. Poole, 5 Brown's Cases in Parliament, 504. 7th. If there was a want of interest in any one of the complainants, the defendant, if the defect appeared upon the face of the bill, should have demurred, or if not, should have pleaded the fact, or in any event he should have insisted upon it specifically in his answer by way of defense. 8th. It is too late at the hearing to start the objection that some or one of the complainants have no interest in the subject matter of the suit. Wilkinson v. Perry, 4 Russ. 272; The E. I. Company v. Baldwin, 9 Vesey, Jr., 467. 9th. The court should have gone on, and decreed as to the complainant Garrett T. Beekman, if as the decree of the court below admits, there was equity in his bill. Story's Eq. Pl. §§ 544, 542. 10th. This feature of the case can only be viewed by the court as a release by the complainant, Alfred Mead, to the defendant, and the rule is, that one co-tenant cannot, by a release to a defendant, abate the bill of complainant filed by a joint tenant, jointly with himself. 2 Freem. 6, cited in Edward's Parties in Chancery, p. 45. 11th. If the court is not satisfied that the court below should have gone on, and decreed for the one complainant, still the decree should be reversed for the purpose of enabling the complainant, Beekman, to amend his bill, by making his co-complainant a defendant, and bring his bill to a hearing upon the new state of facts presented by the evidence.

GAMBLE & BATES, for Appellee.

1st. The bill admits that the written contract between the parties is in terms absolute and final, and not conditional, nor provided as a security only, and sets up only a private verbal understanding, against the terms of the written contract, and positively denies any such verbal understanding, and the answer is not rebutted by any sufficient testimony. If this be so, it disposes of complainant's case. As to what is sufficient testimony to rebut the answer, see 9 Mo. R. 226, Gamble et al. v. Johnson. The rules of evidence at law and in chancery are the same. It is not competent to show, by parol evidence, that a deed absolute in its terms was intended to be conditional, without showing also fraud, accident or mistake, in obtaining the deed. 10 Mo. R. 488, Hogel v. Lindell; also, 10 Mo. R. 506. 2nd. The affidavit and disclaimer of the complainant, Mead, as evidenced, is conclusive against the equity of the bill. 7 Mo. R. 386, Dilon v. Chouteau. It is not as Beekman's counsel supposes, an admission of a co-partner, after dissolution; but a solemn declaration of a joint contract and joint plaintiff, denying the only allegation in the bill on which a claim of equity could be maintained, and in this particular concurring with the answer. If Mead's declaration be no evidence, neither would a similar declaration by Beekman, and so both might recover, against the sworn declaration of both that they had no honest claim! Certainly Mead's declaration would be good evidence against himself, and therefore the court could not reject it; and the bill does not set up any separate contract or understanding by Knox with Beekman alone. 3rd. The record presents no question as to misjoinder or non-joinder of parties. If the subject matter were truly stated in the bill, then the parties were right. It is only because the defendant and one of the plaintiffs deny the truth of the bill, that the other complainant thinks there is something wrong about the parties. The defendant has never raised an objection that one of the complainants had no interest in the subject matter. On the contrary, the objection was, and is, that there is no subject matter in which all or any of the complainants had a valid interest against the defendant. 4th. The claim of Beekman's c...