Roden v. Helm

• Decision Date: 25 October 1905
• Citation: Roden v. Helm, 192 Mo. 71, 90 S.W. 798 (Mo. 1905)
• Parties: RODEN v. HELM et al.
• Court: Missouri Supreme Court

90 S.W. 798

192 Mo. 71

RODEN v. HELM et al.

Supreme Court of Missouri, Division No. 2.

October 25, 1905.

1. JUDGMENT—CONFORMITY TO PLEADINGS.

Where the instrument sued on recited that defendants had an interest in certain property held by a trustee in trust for "them and others," and granted to plaintiff a lien on the trust estate against defendants' interest therein as security for a note, and the petition prayed for judgment against defendants for the debt, and asked that the same might be declared a special lien on the property, a judgment for the sale of all the land, following a finding, inconsistent with the instrument sued on, that by such instrument defendants granted to plaintiff a lien on all the property held in trust by the trustee, granted relief not authorized by the facts appearing on the face of the petition, which made the instrument a part thereof.

2. WRIT OF ERROR—ERROR IN JUDGMENT— REVIEW WITHOUT BILL OF EXCEPTIONS.

The error in a judgment, arising from the fact that it grants relief not authorized by the facts appearing on the face of the petition, is reviewable without a bill of exceptions; the error being apparent on the face of the record proper.

3. JUDGMENT — REQUISITES—RESPONSIVENESS TO PLEADINGS.

A judgment must be responsive to the pleadings.

4. PARTIES—PROCEEDINGS FOR SALE OF LAND —PERSONS CLAIMING INTEREST IN LAND.

Where the purpose sought by a judicial proceeding is to expose real estate to sale, the better practice is to make all persons having any interest therein, contingent or otherwise, parties to the proceedings; the statute requiring that all persons interested in the subject-matter of an action be made parties to it.

Error to Circuit Court, Audrain County; E. M. Hughes, Judge.

Action by Thomas F. Roden against Thomas Helm and others. There was a judgment for plaintiff, and defendants bring error. Reversed.

Geo. Robertson and F. R. Jesse, for plaintiffs in error. P. H. Cullen, for defendant in error.

FOX, J.

At the October term, 1903, this cause was submitted on briefs to this court for determination. My esteemed colleague, Judge GANTT, on March 23, 1904, announced the conclusions reached upon the propositions as then presented for our consideration, in which all of this division concurred. With his permission the statement of facts and legal conclusions are here reproduced. They were thus stated:

"This is a writ of error from a judgment of the circuit court of Audrain county. The action was commenced November 12, 1898. The petition alleges that defendants, Thomas, Anna, and Elizabeth Helm, by their promissory note of date October 31, 1898, promised to pay plaintiff $1,450 one day after the date thereof, with interest thereon from date at the rate of 8 per cent. per annum, payable annually, and if not so paid to become as principal and bear the same rate of interest; that plaintiff is now the holder and owner of said note; and that the whole of said note with interest is still due plaintiff, for which he asks judgment and costs. And for another cause of action against defendants, plaintiff says that the said defendants, by their certain promissory note herewith filed, dated October 31, 1898, promised to pay to plaintiff the sum of $1,450 one day after the date thereof, with interest from date at the rate of 8 per cent. per annum, and if not paid annually to become as principal and bear the same rate of interest. Plaintiff says that the whole of said note and the interest thereof are yet due plaintiff, and for which he asks judgment. `Plaintiff further says the defendant Thomas Helm, some years past, was possessed of a great amount of real and personal property to the value of $10,000; that the said Thomas Helm caused said money and property to be invested in the following described real estate in Audrain county, Mo., to wit, 160 acres the N. W. ¼ of section 28, township 52, range 9, and also 80 acres, being the W. ½ of the N. E. ¼ of section 28, township 52, range 9, and also lot No. 31 in Mrs. Sparks' Southern addition to Mexico, Mo., and caused said land to be deeded to one A. G. Turner as trustee, for the use and benefit of himself and his codefendants herein, to wit, Anna Helm, who is the wife of said Thomas Helm, and Elizabeth, who is the daughter of said Thomas Helm. Plaintiff says that on the 31st day of October, 1898, the defendants herein made, executed, and delivered to plaintiff an instrument of writing, which is hereto attached and made a part of this pleading, by which they did give and grant to said Roden a lien on all the above described property, and did by said instrument create in said Roden's favor a charge on said property for the purpose of securing the note sued on. Plaintiff therefore prays judgment against said defendants for the amount herein sued for and interest, and prays that said judgment may be declared a special lien on said property herein described, and further prays for an order on said trustee to pay said judgment out of any money or property that he may hold as trustee aforesaid, and prays further that, if said judgment be not paid, the property herein described, or so much of it as may be necessary, may be sold to satisfy said debt, judgment, interest, and costs and for such other and further relief as may be proper.' The instrument sued on is in words and figures following: `Mexico, Mo., Oct. 31st, 1898. Whereas, Thomas Helm has become indebted to Thomas F. Roden in the sum of fourteen hundred and fifty dollars on account of necessaries furnished said Helm, his wife and family, and whereas, said Thomas Helm and his wife, Annie, and his daughter, Elizabeth, have this day executed to said Roden their promissory note for fourteen hundred and fifty dollars due one day after date bearing 8 per cent. compound interest, and whereas the said Thomas, Anna and Elizabeth Helm have an interest in certain real and personal property now held in trust for them and others by one A. G. Turner as trustee and as security for said note, we give and grant to said Thomas F. Roden a lien on said trust estate and create a charge in said Roden's favor against our interest in said trust estate for the purpose of securing said debt or note and agree that said trust estate in whatever form it now is or may be in the future shall stand as security to said Roden for said note and interest. Thomas Helm, Anna S. Helm, Elizabeth Helm.'

"To this petition defendants demurred, but, as the demurrer was overruled and defendants pleaded over, it is not necessary to reproduce it. Defendants filed their joint answer in words and figures as follows: `Now comes defendants herein, and for answer to plaintiff's petition deny each and every allegation set forth in both counts thereof and pray to be discharged. Defendants for another and further defense to plaintiff's second cause of action state: That on the ____ day of ____, one Charles H. Rodes was duly appointed trustee of the estate of the defendant herein Thomas Helm, and that on the 26th day of November, 1880, the said defendants Thomas Helm and Anna Helm made and executed to the said Charles H. Rodes a deed to certain property situated in McLain county, Illinois, and more particularly described as the northwest quarter of section 5, township 24 north of range 2, east of the third principal meridian, and containing by estimation 173.58 acres. That said conveyance was made to the said Charles H. Rodes by the said defendants Thomas and Anna Helm in consideration of love and affection of said Thomas Helm for his wife and heirs at law, and that said conveyance was made in trust to the said Charles H. Rodes as trustee for the purpose, to wit, that said trustee was directed to pay over to said Thomas Helm for and during his natural life the net annual income or profits arising from the proceeds of the sale thereof in case that it was sold and in case the said Anna Helm survived her husband, then the one-half of the said land or the one-half of the proceeds of sale was to be held by the said trustee, the net income or profit arising from the one-half of the said land or the one-half of the net proceeds of the sale was to be paid by the said trustee to her so long as she may live and the other half of said land or the half of the proceeds of the sale of said land was to go and pass to those who may be the immediate heirs at law of Thomas Helm at the time of his death, and upon the death of Anna Helm, in the event she survived her husband, Thomas Helm, was in like manner to go and pass to those who may be the heirs at law of Thomas Helm, in the event that Thos. Helm survived his wife, then the whole of the land or the proceeds at his death was to go and pass to his children or heirs at law, and the said trustee was expressly empowered in said conveyance to sell and convey said land whenever he, in his discretion, might deem it best to do so, in which event he should reinvest the proceeds of the same on other lands or loan same out as he may deem best. And it was further provided in said conveyance that, in the event said office of trustee should become vacant by reason of death or resignation of said trustee, the judge of the Boyle county court in the state of Kentucky was empowered to fill the vacancy and require from the said trustee so appointed bond for the faithful discharge of his duty. Defendants state that on the ____ day of ____, 1885, one Amanda Rodes died in Boyle county, Kentucky, leaving a will which was duly probated, by the terms of which will there was left to the said defendant Thomas Helm, by the said Amanda Rodes, a large amount of property, and that by the terms of the said will the said Charles H. Rodes was appointed trustee of said estate so left to the said defendant Thomas Helm, which said estate was left in trust in all respects and in every particular as was the estate theretofore conveyed to the said Chas. H. Rodes, trustee, by the said defendants Thomas Helm and Anna Helm on the...