Morrison v. Herrington

• Decision Date: 05 March 1894
• Citation: 25 S.W. 568,120 Mo. 665
• Parties: Morrison v. Herrington, Appellant
• Court: Missouri Supreme Court

25 S.W. 568

120 Mo. 665

Morrison v. Herrington, Appellant

Supreme Court of Missouri, First Division

March 5, 1894

Appeal from Sullivan Circuit Court. -- Hon. G. D. Burgess, Judge.

Affirmed.

D. M Wilson for appellant.

(1) The first count of the amended petition contained a new distinct, and entirely different cause of action from that stated in the original petition, and appellant's motion to strike it out should have been sustained. Lumpkin v Collier, 69 Mo. 170; Parker v. Rodes, 79 Mo. 88. (2) The amended petition having been filed on plaintiff's own motion, and without leave of court, should have been stricken out. R. S. 1889, sec. 2115. (3) Under the practice in this state, equity cases are substantially triable de novo in the supreme court; and this court is not bound by the finding of facts of the trial court, nor by its conclusions of law therein, but will exercise a supervisory control over both. Blount v. Spratt, 113 Mo. 48; McElroy v. Maxwell, 101 Mo. 294. (4) A review of the evidence in this cause, it is submitted, shows these facts to be true: First. That S. C. Hutchinson became the owner in fee of the land in controversy on March 14, 1885. Second. That there was no collusion between appellant and Clevenger, nor fraudulent intention to cheat respondent. Third. That the sale from Clevenger to appellant was bona fide, and the consideration named in the deed an actual and valuable one. If these conclusions be warranted by the evidence, this court should reverse the decree on the first count. (5) The bond of Hutchinson as ex officio collector was a lien on his lands owned at the time of its approval and recording, and extended to lands subsequently acquired. R. S. 1889, sec. 7590. Wimpey v. Evans, 84 Mo. 144. (6) The court erred in giving respondent's second declaration of law. The sale under the distress warrant and the deed from the sheriff to Clevenger did vest the title of the land in Clevenger. First. Because by the pleadings the distress warrant was admitted to have been legally issued, and all the proceedings had thereunder done according to law. Second. Because the land was the land of Hutchinson the principal in the bond; the bond was a lien on the land, and although the distress warrant may have been void as to the sureties on the bond, yet in as much as it stood admitted that Hutchinson was a defaulter for the exact amount stated in the warrant, and at the time of the issuing of the warrant and levy on the land was still in office, the distress warrant was not void as to him. (7) The court erred in giving the third declaration of law asked by respondent, because there was no evidence showing that appellant purchased the premises in question at the sale under the distress warrant through the agency of Clevenger, and as a mere subterfuge to avoid payment of the Morrison mortgage. All the evidence was directly to the contrary.

John P. Butler for respondent.

Black P. J. Barclay, J., absent.

OPINION

Black, P. J.

This was an action of ejectment to recover eighty acres of land in Sullivan county. The petition as first filed contained one count in the usual form. Before the return term of the writ, the plaintiff filed an amended petition, the first count of which sets out the plaintiff's title and other matters, and prays for equitable relief, namely, that two deeds, one from the sheriff to Edward Clevenger, and the other from Clevenger to the defendant, be set aside and for naught held; the second count is the same as the original petition, that is to say, a count in ejectment. At the return term the defendant moved to strike out the amended petition, because it set up a new and different cause of action from that stated in the original petition, which motion was overruled, and the defendant excepted. Defendant then filed answer to both causes of action. They were both tried at the same time by the court, and the court rendered a decree setting aside the two deeds, and gave judgment for plaintiff for possession on the second count.

1. The court did not err in refusing to strike out the amended petition. It was held in Lumpkin v. Collier, 69 Mo. 170, that the plaintiff could not, by an amendment, change his cause of action from ex contractu to ex delicto, but that and the other cases cited by the defendant have no application to the case in hand. Here the plaintiff simply added a cause of action in equity to his ejectment count, and this he had a right to do. A plaintiff may unite in the same petition several causes of action, whether they be such as have been heretofore denominated legal or equitable, or both, where they arise out of the same transaction and are connected with the same subject of action. R. S. 1889, sec. 2040. Here the causes of action, one legal and the other equitable, arose out of transactions connected with the same subject of action. The parties being the same also, there was no misjoinder. Though the court could have granted full and complete relief on the equity cause of action, even to awarding a writ of possession, still it is quite common practice to join an ejectment count with an equity cause of action in such cases. There can be no doubt but the plaintiff had the right to file the amended petition. As no answer had been filed, it was not necessary to first obtain leave to file the amended petition. R. S. 1889, sec. 2102.

2. On the second of April, 1881, William J. Hutchinson executed a deed, whereby he conveyed the eighty acres in question to Mr. Moberly in trust to secure a debt of $ 550 due to Mr. Haley. The land was sold under this deed of trust on the fourteenth of March, 1885, and Samuel C. Hutchinson became the purchaser. It is alleged in the equity cause of action that Samuel C. purchased the land for his brother, William J. Hutchinson, and that Samuel C. never had any interest in it, save the bare legal title.

Samuel C. Hutchinson was elected treasurer of Sullivan county in November, 1884, for a term of two years, and at the expiration of that time was again elected for another like term. The county being under township organization, he became ex officio collector. He gave bond as such collector at the beginning of the first term, which was approved and recorded. By force of section 6736, Revised Statutes, 1879, this bond became a lien on his real estate.

When Samuel C. Hutchinson purchased the land on the fourteenth of March, 1885, at the trustee's sale, he made a temporary loan to raise money to pay the purchase price. On the first of May, 1885, about a month and a half after that purchase, he conveyed the same eighty acres to Mr. Darrow in trust to secure his coupon bond for $ 600, payable to James W. Morrison. He used the money thus raised in paying off the temporary loan before mentioned. Subsequently and on the twenty-second of February, 1886, he conveyed the eighty acres in question and another eighty acre tract to the defendant James S. Herrington for the consideration of $ 2,500. As a part of this consideration, Herrington assumed and agreed to pay the $ 600 debt secured by the before mentioned deed of trust to Darrow, and also a $ 700 debt secured by a deed of trust on the other eighty acres. The difference between these two debts and $ 2,500 was paid in cash to Samuel C. Hutchinson, who paid the difference between the $ 600 debt and the purchase price of the eighty acres in question over to his brother William. The defendant Herrington made the purchase of the two eighties from Samuel C. Hutchinson by and through his uncle, Edward Clevenger, who was the agent of the defendant in making the purchase. Defendant paid the $ 700 debt as he had agreed. He also paid the annual interest on the $ 600 debt secured by the deed of trust to Darrow as trustee on the eighty acres in suit down to the date of the sheriff's sale next mentioned. The plaintiff, John H. Morrison, became the owner of the $ 600 bond in June, 1888.

Samuel C. Hutchinson made default as collector for the first term of office to the amount of about $ 12,000, and on the fifth of November, 1888, the state auditor issued a distress warrant against him and the sureties on his bond for that amount. The sheriff levied this warrant upon and sold the two eighty acre parcels of land on the eighth of February, 1889, and Edward Clevenger became the purchaser at the price of $ 100 and received a sheriff's deed. In June of that year he conveyed both parcels to the defendant, James S. Herrington for a recited consideration of $ 1,500. It is these two deeds which the plaintiff had set aside under the equity cause of action. The averments made in the petition for that purpose are that Clevenger and the defendant for the purpose of...