Powell v. Huffman
| Decision Date | 13 September 1948 |
| Docket Number | 40604 |
| Parties | Oscar L. Powell, Appellant, v. E. S. Huffman and Elizabeth Huffman, Respondents |
| Court | Missouri Supreme Court |
Appeal from Dunklin Circuit Court; Hon. James V. Billings Judge.
Reversed and remanded.
Jones & Jones and Sam J. Corbett for appellant.
The trial court erred in holding that the deed in question was a conditional sale and not a mortgage, and therefore the plaintiff, appellant, had no right to redeem. In considering the subject, it is at once to be admitted that a conveyance to secure a subsisting debt is a mortgage, whatever may be the form of the deed, or however absolute it may appear upon its face. It is also true that, where the facts of the transaction leave it questionable whether a mortgage or conditional sale was intended, the doubt is to be resolved in favor of the theory of a mortgage. Slowey v McMurray, 27 Mo. l.c. 115; Turner v. Kerr, 44 Mo. l.c. 431; Bobb v. Wolff, 148 Mo. l.c. 344; Wilson v. Drumrite, 21 Mo. 325; Lipscomb v Tolbert, 243 Mo. l.c. 30; Garrison v. Schmicke, 193 S.W.2d l.c. 616; Book v. Beasley, 138 Mo. 455; O'Neill v. Capelle, 62 Mo. 202; Hargadine v. Henderson, 97 Mo. 375; Younger v. Evers, 333 Mo. 931, 64 S.W.2d 936; Mayberry v. Clark, 317 Mo. 442, 297 S.W. 39; Duell v. Leslie, 207 Mo. 658; Schradski v. Albright, 93 Mo. 42.
Von Mayes and Ward & Reeves for respondents.
(1) The deed in question purports to express the entire contract between the parties, and the deed must be solely looked to in determining whether it is a mortgage, as the terms cannot be varied by proof or averment of any oral understanding between the parties. The stipulation in the deed shows it was a conditional sale and not a mortgage. Carson v. Lee, 281 Mo. 166; Donovan v. Boeck, 217 Mo. 70; Bobb v. Wolff, 148 Mo. 335; Turner v. Kerr, 44 Mo. 429; Slowey v. McMurray, 27 Mo. 113. (2) Plaintiff's petition shows in connection with Exhibit A that exactly eight years elapsed from the date of the deed until this suit was filed, and seven years after the specific time limit fixed in the deed for redemption. No reason or excuse is pleaded to justify such long delay. Such delay of itself has been held sufficient ground to refuse equitable relief, even though the instrument may be construed to be a mortgage. Bobb v. Wolff, 148 Mo. 335. (3) The second count of the plaintiff's petition pleads that the property was sold under an execution on a judgment against appellant, and that such sale was regular in every way, except for the alleged reason the property was appellant's homestead. Such sale as pleaded in the second count cut out the plaintiff's right to redeem as pleaded in the first count, even though it be held the first count was not subject to dismissal for failure to state a cause of action. Hammond v. Johnson, 93 Mo. 198; Holloway v. Holloway, 103 Mo. 274. (4) The judgment on the motion to dismiss disposed of the whole case, and the judgment was right for the additional reason the trial court should have sustained our fourth ground in the motion to dismiss. Jones v. Williams, 357 Mo. 531, 209 S.W.2d 907. (5) The second count failed to make any averment of fact as to whether appellant ever occupied the property or lived on it as a homestead, or that he resided in Missouri, or that he was the head of a family, or a married man, or that the value of the property was within the limitation fixed as the value of a homestead. There is no specific averment that it was a homestead. It is stated that some of these essential factual elements were contained in a notice given to the sheriff pending the sale under the execution, but none of these facts are pleaded or stated as true, and which are held to be essential in a pleading of a homestead right. 29 C.J., sec. 453, pp. 985-986; 40 C.J.S., sec. 154(b), pp. 623-624, sec. 232, pp. 711-713; State to Use v. Bacon, 24 Mo.App. 403.
Barrett, C. Westhues and Bohling, CC., concur.
In this action the plaintiff seeks to have a deed declared a mortgage, with the attendant right of redemption, and a sheriff's sale set aside. The trial court sustained a motion to dismiss the first count of the plaintiff's petition on the specified ground that the deed was a conditional sale and not a mortgage. Since the plaintiff admitted that he could not recover on the second count of his petition unless he was entitled to recover on the first count the court entered judgment for the defendants on both counts. Upon this appeal by the plaintiff the initial question is whether the first count of his petition states a claim upon which relief can be granted. Mo. R.S.A., Sec. 847.62. The secondary question involves the defendants' claim that the second count fails to state a claim upon which relief can be granted and that therefore, in any event, the trial court properly entered a judgment of dismissal. Mo. R.S.A., Secs. 847.67, 847.140(a).
The allegations of the first count are long and quite involved but it is unnecessary to relate them other than to say that they set forth the plaintiff's interest in the land, the circumstances under which the deed was executed and the facts concerning the indebtedness for which the conveyance was alleged to have been made. It is alleged that the original indebtedness, evidenced by a note and mortgage, was $ 568.00. By reason of advances for lumber and improvements the indebtedness increased to $ 808.00 and it is for this latter sum that the conveyance is alleged to have been made. It is also alleged that there were payments of $ 150.00 and $ 160.00 on the indebtedness in 1940 and 1941. The deed, dated May 23, 1938, recites a consideration of $ 808.00 and it also recites that it is subject to a deed of trust securing an indebtedness of $ 568.00. The controversy, so far as the merits of this appeal are concerned, revolves around this clause in the deed:
"This deed made and executed with agreement by Grantor herein that the Grantor be allowed the privilege of redemption of land herein conveyed by the Grantor on or before the 23rd day of May, 1939, upon the following agreed and stipulated conditions, to-wit: First, that the Grantor herein pay to the Grantees herein, . . . the sum of Eight Hundred and Eight Dollars ($ 808.00), and with interest thereon, from May 23rd, 1938, to date of redemption at the rate of eight per cent per annum, and in addition thereto, or Second, the Grantor shall also pay to said grantees herein, . . . any and all State, County, Drainage and Levee, or any other tax now assessed and past due that may be paid by the Grantees herein on said land, and with interest thereon at the rate of eight per cent per annum from the date of payment of said taxes."
The respondents construe the deed as expressing the entire contract between the parties and contend that it plainly stipulates a conditional sale and not a mortgage. They say that the deed on its face does not show the conveyance to have been given to secure a debt, the only reference to a debt being the $ 568.00 mortgage. They contend that the word "redemption" as here used means "repurchase," within the limited time. Prima facie the instrument is what it purports on its face to be -- a deed (Bobb v. Wolff, 148 Mo. 335, 344, 49 S.W. 996) and if it is certainly a conditional sale and not a mortgage neither the intention of the parties nor their collateral agreements can change its essential nature and force. Turner v. Kerr, 44 Mo. 429, 432. On the other hand if the transaction, as evidenced by the terms of the instrument (Hargadine v. Henderson, 97 Mo. 375, 11 S.W. 218) and upon the particular facts and circumstances alleged (Book v. Beasley, 138 Mo. 455, 461, 40 S.W. 101), was in point of fact a mortgage the plaintiff is entitled to have it enforced as such if he can successfully sustain the allegations of his petition. 4 Pomeroy, Equity Jurisprudence, Secs. 1192-1196; Annotations 79 A.L.R. 937; 155 A.L.R. 1104; 111 A.L.R. 448. The facts and circumstances of each case are always carefully examined, deference being accorded the findings of the trial court after a hearing upon the merits. Mosley v. Cavanagh, 344 Mo. 236, 125 S.W. (2) 852; Miller v. Miller, 353 Mo. 884, 184 S.W. (2) 1011; Wright v. Brown, (Mo.) 177 S.W. (2) 506.
Whether the transaction was a sale or whether it was a mortgage may be determined upon the allegations of the petition alone, particularly when an unambiguous contract is relied upon. Donovan v. Boeck, 217 Mo. 70, 116 S.W. 543. However, the instrument in the Donovan case in express terms canceled any subsisting debt and, in addition to other circumstances negativing a mortgage, in plain terms provided: "It is expressly understood between the parties hereto that this instrument shall not be construed as a mortgage." Branham v. Peltzer, (Mo.) 177 S.W. 373, is an excellent example of a typical conditional sale and Sheppard v. Wagner, 240 Mo. 409, 144 S.W. 394, 145 S.W. 420, is an excellent example of a typical mortgage case. The appellant and the respondents agree that the ultimate and essential test of the transaction being a mortgage is the continued existence of a debt between the parties, thereby...
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