Pike v. Martindale
| Decision Date | 15 November 1886 |
| Parties | Pike et al. v. Martindale et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. Jos. P. Grubb, Judge.
Affirmed.
R. S Musser for appellants.
(1) Whatever interest or right W. S. Pike may have had in the premises, it was simply that of a trustee for the benefit of the banking firm of Pike Brothers & Company. Therefore plaintiffs have no interest in the subject matter of this suit as heirs at law of W. S. Pike, and the decree rendered by the circuit court was not warranted by the evidence and should be reversed. (2) The burden of proof was on plaintiffs to show that defendant, Cook, had notice, at least sufficient to put him on inquiry, of the pretended conveyance by Boissat to Pike, in September, 1873, or of the trust. The evidence of such notice is insufficient, and the decree in that respect is not supported by the evidence. (3) The finding of the court, that defendant, Cook, unlawfully withholds from plaintiffs the possession of said lands, and that the monthly value of the rents and profits of said premises is eight and one-third dollars, and that the plaintiffs have been damaged by such detention in the sum of $ 212.30 (less the credit for taxes), and the rendering judgment against Cook for possession, and the residue of the said damages, $ 108.30 and damages for the monthly rents and profits of said premises from the date of judgment until restitution thereof be made at the rate of eight and one-third dollars per month, is unwarranted, and without a particle of evidence justifying the finding of the court. The only evidence introduced by the plaintiffs on this subject was that of defendant, Cook, whom they made their own witness, and his testimony does not warrant the finding and judgment. (4) The finding of the court, that the land described in the tax deed made by J. L. Bennett, collector, was not sold to said Cook, nor to any one at public sale, is unwarranted, and is not a conclusion from any testimony preserved in the bill of exceptions. Acts 1872, pp. 125 and 131. (5) The court erred in sustaining the motion to strike out that part of defendant Cook's answer wherein he set up the alleged champertous agreement between W. W. Caldwell and plaintiffs. Duke v. Harper, 66 Mo. 55; Story's Eq., sec. 1048; Martin v. Veeder, 20 Wis. 475; Bayard v. McLane, 3 Harrington, 212. Where it clearly appears that the suit was commenced, and is being prosecuted, under a champertous agreement, the court should on its own motion dismiss it. Greenman v. Copee, 61 Ind. 205; Barker v. Barker, 14 Wis. 142; Allard v. Lamirande, 29 Wis. 502; Webb v. Armstrong, 5 Humph. 379; Hayney v. Coyne, 10 Heisk. [Tenn.] 339; Jenkins v. Bradford, 59 Ala. 400. (6) Plaintiffs' petition contains a count in equity and a count at law, and there should have been separate trials and separate judgments. The court heard and tried both counts together. "Where a count at law and a count in equity are included in the same petition, they require separate trials and separate judgments." Crowe v. Peters, 63 Mo. 429; Jones v. Moore, 42 Mo. 420; Henderson v. Dickey, 50 Mo. 160. The court erred in trying the law issue, in determining the damages and monthly value of the premises. This is the province of a jury, and a constitutional right of defendants, unless a jury was waived in the manner prescribed in the statutes. R. S., sec. 3600, 3602. (7) The plaintiffs' action is barred by laches. Landrum v. Bank, 63 Mo. 48; Story's Eq., sec. 756. Laches need not be pleaded. 4 Otto, 811.
Strong & Mosman, I. R. Williams and W. W. Caldwell for respondents.
(1) Appellants' tax deed was void. State ex rel. Harvey v. Cook, 82 Mo. 185; Abbott v. Lindenbower, 42 Mo. 152; Cooley on Taxation, 259. (2) Courts of equity will interfere for the relief of a vendee who has taken a defective conveyance, and compel the vendor, his heirs, and all other persons claiming under him, to make good the conveyance. Barksdale v. Brooks, 70 Mo. 197; 2 Sug. on Vend. 1022; 5 Johns. Ch. 224, and cas. cit.; Mastin v. Halley, 61 Mo. 196; McQuie v. Peay, 58 Mo. 56; Dunn v. Raley, 58 Mo. 134; Carter v. Holman, 60 Mo. 498; Blackburn v. Tweedie, 60 Mo. 505; Atkinson v. Dixon, 70 Mo. 381; Martin v. Jones, 72 Mo. 23. (3) The members of the late firm of Pike Brothers & Company are not necessary parties to the suit. Besides, the objection as to defect of parties can only be taken by demurrer, or answer, and cannot be raised for the first time on the trial. R. S. 1879, sec. 3519; Kellogg v. Malin, 62 Mo. 429; Butler v. Lawson, 72 Mo. 247. (4) The decree in this case is right. Courts of equity, in such cases, have power to do full justice between the parties, adjudicate all the equities, such as rents, taxes, etc., and issue writs of restitution. This power is conferred by statute (R. S., sec. 3693), and is a common law right as well. Henderson v. Dickey, 50 Mo. 161; Kershaw v. Thompson, 4 Johns. Ch. 609; Hutcherson v. Briscoe, 77 Mo. 373; Bibb v. Means, 61 Mo. 284; Harris v. Haley, 61 Mo. 462; Cathcart v. Robinson, 5 Pet. 263. The objection of appellants that the court erred in trying the law issues, and determining the damages and monthly value of the premises, comes too late. They should have raised it at the trial and saved it in their bill of exceptions. They appeared and consented that both matters should be heard together, and by that action waived the right of trial by jury. Jones v. Moore, 42 Mo. 419. (5) The evidence shows defendants' knowledge of the claim of plaintiffs and their ancestors. (6) The objection of the staleness of plaintiffs' claim is not well taken. (7) The question of champerty cannot be raised in this case by defendants. Boone v. Child, 10 Pet. 177; McIntyre v. Thompson, 10 F. 532; Railroad v. Johnson, 29 Kan. 229; Whitney v. Kirtland, 27 N. J. Eq.; Small v. Railroad, 55 Ia. 584; Bent v. Priest, 10 Mo.App. 546; S. C., 86 Mo. 475.
OPINION
This suit was instituted by plaintiffs against defendants for the purpose of cancelling certain deeds, and vesting in plaintiffs the legal title to certain lands, described therein, and situate in Andrew county, Missouri. There is a separate count in the amended petition which contains the ordinary allegations in ejectment proceedings.
The land was patented by the United States to Eugene R. Boissat, of Alexandria, Louisiana, under whom the plaintiffs and defendant, Cook, claim title; the other defendants disclaim any interest in the proceedings. E. R. Boissat, the original owner of the land in question, paid no taxes upon it after the beginning of the war, and it remained unoccupied. In September, 1873, the said Boissat executed and delivered to William S. Pike, of New Orleans, Louisiana, the instrument under which the plaintiffs claim title, as heirs at law of said William S. Pike, which said instrument was neither sealed, acknowledged, nor recorded. It may be stated in this connection, that defendant further claims that said deed was intended as a security for a debt due from said Boissat to the firm of Pike Brothers & Company, a banking firm in New Orleans. In December, 1877, a tax deed was executed by the collector of Andrew county to the defendant, Cook, based on a sale of the land for taxes, made in the year 1875, for the taxes of 1874. As to this deed, plaintiffs say that the same is void, for want of substantial compliance with the revenue law; that said land was never sold at the tax sale, but was forfeited to the state, and that defendant's tax deed was fraudulently obtained. In March, 1877, there was filed in the office of the recorder of deeds of Andrew county, a certain instrument, purporting to be a deed from Eugene R. Boissuit, of Arkansas, to John Inglehart, of St. Louis, Missouri, under which neither of the parties to this action claim, and which both plaintiffs and defendants charge is a forgery. In September, 1879, Eugene R. Boissat and wife, Virginia, executed and delivered to the defendant, Cook, a conveyance containing the statutory covenants for title implied by the words "grant, bargain, and sell," which said deed was, on the eleventh day of September, 1879, duly recorded in the land records of Andrew county.
In their amended petition plaintiffs charge, in substance, that they are the heirs at law of W. S. Pike, who died in New Orleans, in 1875; that they are the equitable owners of the land in question, by virtue of a deed, made on the day of September, 1873, by Eugene R. Boissat, to their ancestor William S. Pike; that for the reason that said deed was neither acknowledged, nor sealed, they were unable to have it recorded; that the defendants, each and all of them, had full notice and knowledge thereof, and of the ownership, etc., of the plaintiffs, and having such knowledge, conspired and confederated together to procure from said Eugene R. Boissat, or some person who fraudulently and falsely personated him, a deed conveying said land; that, in pursuance of said conspiracy, the defendant, Martindale, procured to be executed and filed for record about March 9, 1877, an instrument purporting to be a deed from Eugene R. Boissat to John Inglehart, which deed was a forgery, etc.; that defendants, with design to further becloud plaintiffs' title, fraudulently procured to be executed and delivered to defendant, Cook, a deed from Joseph L. Bennett, collector of the revenue; that the recitals in said tax deed were untrue, etc.; that the land was not assessed, returned delinquent, nor was any judgment rendered against the same, nor the land sold as recited, but that, after the said lands were declared forfeited to the state for want of bidders, defendant, Martindale, representing his co-defendants, and in...
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