Rains v. Moulder

• Citation: 90 S.W.2d 81,338 Mo. 275
• Decision Date: 04 January 1936
• Docket Number: 32628
• Parties: John M. Rains v. Thomas Moulder, May Belle Bardis, Lincoln Moulder, John Dewey Moulder, Roscoe Moulder, Mary Cable, Joe David Moulder, Fay Moulder, Reta Moulder, and W. F. Wilkinson, Guardian Ad Litem for Maxine Moulder, Appellants
• Court: Missouri Supreme Court

90 S.W.2d 81

338 Mo. 275

John M. Rains v. Thomas Moulder, May Belle Bardis, Lincoln Moulder, John Dewey Moulder, Roscoe Moulder, Mary Cable, Joe David Moulder, Fay Moulder, Reta Moulder, and W. F. Wilkinson, Guardian Ad Litem for Maxine Moulder, Appellants

No. 32628

Supreme Court of Missouri

January 4, 1936

Appeal from Camden Circuit Court; Hon. C. H. Skinker Judge.

Reversed and remanded (with directions to modify).

A L. Shortridge, W. F. Wilkinson and W. Raleigh Gough for appellants.

(1) This cause is one at law. Sec. 1520, R. S. 1929; Wolfersberger v. Hoppenjon, 68 S.W.2d 814; Peniston v. Hydraulic Press Brick Co., 234 Mo. 698 138 S.W. 532; 49 C. J. 322; Daniel v. Pryor, 227 S.W. 104; Stock v. Schloman, 42 S.W.2d 64; Williams v. Walker, 62 S.W.2d 840. (2) The court was without jurisdiction to grant plaintiff a lien for improvements, under the pleadings in the case. Sec. 1384, R. S. 1929; 49 C. J. 322; Daniel v. Pryor, 227 S.W. 104; Stock v. Schloman, 42 S.W.2d 64; Friedel v. Bailey, 44 S.W.2d 15; Hecker v. Bleish, 319 Mo. 149, 3 S.W.2d 1019; 31 C. J. 313; Dothage v. Stuart, 35 Mo. 251; Schroyer v. Nickell, 55 Mo. 264; Fenwick v. Gill, 38 Mo. 510; 31 C. J. 314; Williams v. Sands, 251 Mo. 147; Richmond v. Ashcraft, 137 Mo.App. 191, 117 S.W. 689; Tice v. Fleming, 173 Mo. 56, 72 S.W. 689, 96 Am. St. Rep. 479; Mann v. Doerr, 222 Mo. 1, 121 S.W. 86; State ex rel. v. Foard, 251 Mo. 51, 157 S.W. 619; Anderson v. Sutton, 308 Mo. 406, 275 S.W. 32; Johnson v. Adams, 7 S.W.2d 1010. (3) The court erred in allowing plaintiff compensation for improvements made on the lands which had been condemned. (a) Insofar as such action was an attempt to impress a lien against the condemnation award, the court was without jurisdiction; Hilton v. St. Louis, 99 Mo. 207, 12 S.W. 657; K. C. & A. Ry. Co. v. View, 156 Mo. 618, 57 S.W. 555; Ross v. Gates, 183 Mo. 347, 81 S.W. 1107; Murphy v. Barron, 286 Mo. 390, 228 S.W. 497; Cassville School Dist. v. McArtor, 286 S.W. 729; United States v. Bothwell Co., 7 F.2d 624; 41 U.S. Stat. at Large, p. 1077, c. 285, sec. 30; 15 C. J., pp. 1161, 1168; Covell v. Heyman, 111 U.S. 176, 4 S.Ct. 355, 28 L.Ed. 390; State v. Stone, 269 Mo. 334, 190 S.W. 601; United States v. Eisenbis, 112 F. 190. (b) Insofar as the decree created a lien on the uncondemned lands, these lands were not benefited by the improvements and should not be charged with their value. Siebel v. Highan, 216 Mo. 121, 115 S.W. 987, 129 Am. St. Rep. 502; Sires v. Clark, 132 Mo.App. 537, 112 S.W. 526. (4) The judgment of the court allowing plaintiff subrogation and lien for the amount paid as purchase price at the void administrator's sale, and interest thereon, is outside the issues made by the pleadings and void. 49 C. J. 322; Daniel v. Pryor, 227 S.W. 104; Stock v. Schloman, 42 S.W.2d 64; Friedel v. Bailey, 44 S.W.2d 15; Hecker v. Bleish, 319 Mo. 149, 3 S.W.2d 1019; Williams v. Walker, 62 S.W.2d 840; Moore v. Mansfield, 286 S.W. 353. (5) The court's judgment, in assigning dower in the premises, was without the issues made by the pleadings and void. Secs. 339, 341, 351, 363, 612, 613, 614, 617, R. S. 1929; Belfast Inv. Co. v. Curry, 264 Mo. 483, 175 S.W. 206; Friedel v. Bailey, 44 S.W.2d 15; Hecker v. Bleish, 319 Mo. 149, 3 S.W.2d 1019; Williams v. Walker, 62 S.W.2d 840. (6) The court erred in not holding plaintiff's claim for subrogation, for the amount of purchase price paid at the administrator's sale, was barred by limitations. Valle v. Fleming, 29 Mo. 152, 77 Am. Dec. 557; Berry v. Stigall, 253 Mo. 690, 162 S.W. 126, 50 L. R. A. (N. S.) 489, Ann. Cas. 1915C, 118; Shanklin v. Ward, 291 Mo. 1, 236 S.W. 64; Maupin v. Longacre, 315 Mo. 872, 288 S.W. 54; Johnson v. Adams, 7 S.W.2d 1010; Capen v. Garrison, 193 Mo. 335, 92 S.W. 368, 5 L. R. A. (N. S.) 838; Sec. 862, R. S. 1929; Marshal v. Hill, 246 Mo. 25, 151 S.W. 131; Burrus v. Cook, 215 Mo. 506, 114 S.W. 1065; Hoester v. Sammelman, 101 Mo. 624, 14 S.W. 728; Bank v. Bank, 107 Mo. 133, 17 S.W. 644, 28 Am. St. Rep. 405; Rogers v. Brown, 61 Mo. 191; Kober v. Kober, 324 Mo. 379, 23 S.W.2d 149; Burrus v. Cook, 117 Mo.App. 385, 93 S.W. 888; Petty v. Tucker, 166 Mo.App. 98, 148 S.W. 142; Farris v. Coleman, 103 Mo. 352, 15 S.W. 767; Byrne v. Byrne, 289 Mo. 109, 233 S.W. 465; Sutton v. Anderson, 31 S.W.2d 1034. (7) The trial court's allowance to plaintiff for subrogation was excessive. Shanklin v. Ward, 291 Mo. 1, 236 S.W. 64. (8) The trial court erred in allowing plaintiff interest on his claim for subrogation. Hannan-Hickey Bros. Const. Co. v. Railroad Co., 247 S.W. 436, 226 S.W. 881; Travis v. Means, 242 S.W. 164; Kingsolving v. Kingsolving, 194 S.W. 530; 33 C. J. 234; Burgess v. Cave, 52 Mo. 43; McDonald v. Loewen, 145 Mo.App. 49, 130 S.W. 52; Simmons Hdwe. Co. v. St. Louis, 192 S.W. 394; 33 C. J. 178; 24 C. J. 233; Coke Litt. p. 34 b; Benagh v. Turrentine, 60 Ala. 557; 33 C. J. 182; Woerz v. Schumacher, 161 N.Y. 530, 56 N.E. 72; Shanklin v. Ward, 291 Mo. 1, 236 S.W. 69; Byrne v. Byrne, 289 Mo. 109, 233 S.W. 461.

Barney Reed, Henry P. Lay and E. W. Jones for respondent.

(1) The reply of plaintiff filed to the answer and cross-petition of the defendants set up matters of an equitable nature and the action was thereby converted into one in equity. Adams v. Boyd, 58 S.W.2d 704; Baron v. Wright-Dalton-Bell-Anchor Store Co., 292 Mo. 211, 237 S.W. 786. (2) This being an equitable proceeding, the court had the subject matter of the suit within its grasp; had jurisdiction of the parties and, in order to avoid a multiplicity of suits, had power to grant full, adequate and complete justice between the parties. Real Estate Savings Inst. v. Collonious, 63 Mo. 295; Gloyd v. Gloyd, 239 S.W. 80; Munford v. Sheldon, 9 S.W.2d 911; Schneider v. Schneider, 224 S.W. 1. (3) The principle of equitable subrogation is germane to the issues presented in this case by the answer and cross-petition of the defendants and the reply of the plaintiff and the decree of the court allowing plaintiff subrogation and a lien for the amount paid as purchase price for the land was correct. Netherton v. Farmers Exchange Bank, 63 S.W.2d 158; First Natl. Bank & Trust Co. v. Bowman, 15 S.W.2d 853; Krug v. Bremer, 292 S.W. 702. (4) The question of limitations was in nowise raised against plaintiff's right of subrogation during the trial of the cause; and there is nothing apparent from the record from which it would appear that it was necessary for plaintiff to take any affirmative action for subrogation prior to the filing of defendants' answer. Therefore, plaintiff's right to subrogation herein should not be held to be barred by limitations. Michael v. Tinnsley, 69 Mo. 442; Cooper v. Diehl, 114 Mo. 527, 22 S.W. 31; Epperson v. Epperson, 161 Mo. 583, 61 S.W. 853; Bramhall v. Bramhall, 216 S.W. 766. (5) Plaintiff was entitled to interest on the money he invested in the land in question as purchase price, for improvements, and on the amount paid by him on the first mortgage against the land in question. 25 R. C. L., sec. 70, p. 1388; Bennett v. First Natl. Bank, 102 N.W. 129; Memphis & Little Rock Railroad Co. v. Dow, 120 U.S. 287, 7 S.Ct. 482, 30 U.S. (L. Ed.) 595.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Suit to determine and quiet title to approximately 650 acres of real estate (hereinafter at times, for convenience, designated the "Rains" land) in Camden County.

The petition, in conventional form, was filed February 12, 1931. Answer and cross-petition was filed October 20, 1931, on behalf of the adult defendants, in which the minor defendants, Reta Moulder and Maxine Moulder, through their guardian ad litem, joined.

The answer and cross-petition sets up title in the defendants. It alleges, in substance, that the common source of title was George J. Moulder, owner in fee, who died intestate March 23, 1922; that said George J. Moulder occupied said land as his homestead at the time of his death; that Emma Moulder, widow of said George J. Moulder and defendants Thomas Moulder, Lincoln Moulder, Mary Belle Bardis, John Dewey Moulder (who had attained their majority at the time of the death of said George J. Moulder), Roscoe Moulder, Mary Cable, Joe David Moulder, Fay Moulder, Reta Moulder and Maxine Moulder (then minors), all children of said George J. Moulder, survived said George J. Moulder as his sole heirs at law; that the administrator of the estate of said George J. Moulder at an attempted administrator's sale, under orders of the Probate Court of Camden County, Missouri, had in connection with a petition for the payment of demands allowed against said estate (not, however, chargeable against said homestead), executed a deed conveying said land to the purchaser [Emma Moulder] at said sale; that said purchaser thereafter conveyed said land to plaintiff; that said administrator's sale was null and void because of noncompliance with jurisdictional statutory requirements and because the lands attempted to be sold included the homestead, which had never been set apart, of said George J. Moulder; that the Union Electric Light & Power Company, a corporation, had condemned an easement over approximately 108 acres of said land in the District Court of the United States in an action against all litigants involved in this action to quiet title, and that the award [$ 17,500] is in the registry of the United States District Court for the Western District of Missouri awaiting order of distribution. The prayer, among other relief, asked the court to define and adjudge the estates, rights, titles, and interests of all the parties, plaintiff and defendants, severally, in and to said lands, and that the title to said lands be forever quieted in defendants, subject to the easement aforesaid.

Plaintiff's reply admits the allegations...