Siling v. Hendrickson

• Decision Date: 22 February 1906
• Parties: SILING et al. v. HENDRICKSON et al., Appellants
• Court: Missouri Supreme Court

92 S.W. 105

193 Mo. 365

SILING et al. v. HENDRICKSON et al., Appellants

Supreme Court of Missouri, Division One

February 22, 1906

Appeal from Cass Circuit Court. -- Hon. W. L. Jarrott, Judge.

Affirmed.

Summers & Summers for appellants.

(1) The demurrer to the petition should have been sustained. As to who is the plaintiff must be determined by the caption and the allegations in the petition taken together. Adams v Cowles, 95 Mo. 507; Charley v. Kelley, 120 Mo 143; R. S. 1899, sec. 539; Pattison's Mo. Code Pleading secs. 246, 250. In equity, the misjoinder of one as a party plaintiff could be reached by a general demurrer to the whole bill for want of equity. Abbott's Trial Briefs of Pleadings, pp. 153, 154. (2) Pleadings of plaintiff and decree have no evidence to sustain them. Plaintiff must recover on case made by his pleadings. Reed v. Bott, 100 Mo. 62; Lenox v. Harrison, 88 Mo. 491; Kennedy v. Daniels, 20 Mo. 104; 22 Ency. Pl. & Pr., pp. 530 and 602; 18 Ency. Pl. & Pr., pp. 805 and 855. (3) A deed absolute on its face cannot be shown to be an express trust. Curd v. Brown, 148 Mo. 82; Wacker v. Wacker, 147 Mo. 246; Hillman v. Allen, 145 Mo. 638. Express trust must be proved by writing. Lane v. Ewing, 31 Mo. 75; Cornelius v. Smith, 55 Mo. 528; Price v. Kane, 112 Mo. 412. George M. Siling was not trustee under the pleadings. Hillman v. Allen, 145 Mo. 644; Wilson v. Polk Co., 112 Mo. 126; Springfield to use v. Weaver, 137 Mo. 670. (4) Under the allegations of the petition Mitchell was Mamie Siling's tenant. The York attachment suit was against Geo. M. Siling and affected his interest only in the land. Then Mamie Siling's tenant did not have to be notified in suit against Geo. M. Siling. (5) The latter part of the petition is neither a proceeding to set aside judgment for fraud by bill in equity, because no fraud is alleged; nor is it a statutory proceeding to set aside or review judgment on service by publication. Neither does it show that a cloud is cast upon title of Mamie M. Siling; because the pleadings show that the attachment proceeding of York was against a party who, according to the petition had no interest in the land, if Mamie Siling, as they claim, owned the land. Irvin v. Legh, 102 Mo. 201; Cruin v. Cruin, 162 Mo. 544; Cox v. Boyce, 152 Mo. 576; Reed v. Nichols, 158 Mo. 624; Covington v. Chamberlin, 156 Mo. 574; Smoot v. Judd, 161 Mo. 673; Hashler v. Schoop, 70 Mo.App. 469; Dunklin Co. v. Clark, 51 Mo. 60; Holland v. Johnson, 80 Mo. 34. The petition in this case is not a bill for review of judgment obtained by publication under statutes. Lindell Real Estate Co. v. Lindell, 142 Mo. 61; R. S. 1899, secs. 777, 780. Nor is it one in equity to set aside judgment for fraud, as was the case in Walters v. Schofield, 167 Mo. 537, because they would have to allege fraud in obtaining judgment as they did there. Neither can it be sustained as bill in equity to set aside judgment. The attachment, judgment and deeds cast no cloud on title of Mamie Siling because the allegations in the petition show it was attachment against a party who had no interest in title of Mamie Siling, and hence it could not be a cloud on Mamie Siling's title under the allegations of the petition. Dunklin Co. v. Clark, 51 Mo. 60; Holland v. Johnson, 80 Mo. 34; Johnson v. Cottingham Ironing Machine Co., 8 Mo.App. 575; McRee v. Gardner, 131 Mo. 599; Graves v. Ewart, 99 Mo. 13; Mason v. Black, 87 Mo. 329; Clark v. Ins. Co., 52 Mo. 272; Peak v. Laugh, 49 Mo. 162. (6) Incompetency of Siling's evidence. One party dead. Agency cannot be proved by admissions or statements of a supposed agent. Bank v. Morris, 125 Mo. 350; Abbott's Trial Brief (Mode of Proving Facts), pp. 127 and 128. (7) Siling's evidence incompetent under pleadings. Evidence was admitted under claim of agency. Failing in that, there was no foundation for its admission, as petition alleged a contract between Libby Siling and Hendrickson. Testimony showed a trade between Geo. M. Siling and Hendrickson. (8) When did the home become Mrs. Siling's? He paid for it. Being engaged in mercantile business he may have put title in her name to hold for himself in event of adversity in business. If so, then her joining in deed to convey it placed title where it originally was. She could give it back to him. (9) If everything that plaintiff claims as to land being Libby Siling's were true, and even if the court could have declared it hers under the evidence, yet that would leave a life estate in Geo. M. Siling, subject to seizure and sale. The judgment in the attachment suit in any event is valid on its face and could be set aside by Geo. M. Siling only, in proper proceedings for that purpose under proper showing. Authorities under point 5. (10) This is not a case to reform deed and if it had been there was nothing to reform. Until Hendrickson was requested to make a new deed and refused, they have no standing in equity, but this petition is not to reform and hence the question of the alleged defects in the deed was not an issue under the petition. Jennings v. Brizeadine, 44 Mo. 332; Gamble v. Daugherty, 71 Mo. 589. (11) If, as the plaintiff contends, the present suit is really a suit in which the court had a right to set aside the York judgment and deed, etc., then the complainant would have to place himself under the rule required at the hands of equity and restore all the money which went to extinguish his note and debt with interest. Mitchell bid at the sale and the money he paid was credited on the debt of Siling due Mrs. York. Yeaman v. Lepp, 167 Mo. 72; Schafer v. Causey, 76 Mo. 365; Kline v. Vogel, 90 Mo. 239; Boggs v. Hargrave, 16 Cal. 559; Bone v. Terrell, 113 Mo. 175; Freeman on Void Judicial Sales (4 Ed.), sec. 49; Maupin on Marketable Titles to Real Estate, sec. 50.

Chas. W. Sloan for respondents.

(1) Mitchell and York, after their demurrers were overruled and Mitchell's motion to strike out parts of petition was also overruled, abandoned all questions raised by the demurrer or motion by answering over and going to trial on the merits. Pickering v. Tel. Co., 47 Mo. 457; State to use v. Sappington, 68 Mo. 454; West v McMullen, 112 Mo. 405; Haughey v. Joyce, 41 Mo.App. 569; Scovil v. Glasner, 79 Mo. 449; Wilson v. Railroad, 67 Mo.App. 443; Sisk v. Ins. Co., 95 Mo.App. 708; Walters v. Hamilton, 75 Mo.App. 237; Murphy v. Railroad, 96 Mo.App. 278; Boyd v. Railroad, 108 Mo.App. 306. (2) Defendant Mitchell was tenant in possession of the land at the time the alleged attachment writ in suit of York v. G. M. Siling was levied, and no notice being given by the sheriff at the time of the levy to said tenant as shown by the sheriff's return, the court acquired no jurisdiction, and the judgment and sheriff's sale were absolutely void as to Geo. M. Siling. Walter v. Scofield, 167 Mo. 537. (3) The home of Libby S. Siling having been conveyed to her November 1, 1892, was her separate property. Sec. 6869, R. S. 1889; Bank v. Hageluken, 165 Mo. 443. This property was conveyed to Hendrickson for the land in controversy and title taken to husband without the knowledge of wife -- without either her verbal or written consent, and her child, Mamie Siling, was entitled to have the title vested in her, especially so as the husband admits he held it as her trustee. Jones v. Elkins, 143 Mo. 647; James v. Groff, 157 Mo. 421; McGuire v. Allen, 108 Mo. 403; Winn v. Riley, 151 Mo. 67. Assent of wife can not be implied. Hart v. Cook, 151 Mo. 416; Rice v. Shipley, 159 Mo. 399; Broughton v. Brand, 94 Mo. 169; Case v. Espenschied, 169 Mo. 220. (4) There is not one element of estoppel shown by the facts in this case. By no act or word of Geo. M. Siling was Mitchell induced to bid on the land at the sheriff's sale. Bramwell v. Adams, 146 Mo. 83; DeBerry v. Wheeler, 128 Mo. 84; Bright v. Miller, 95 Mo.App. 276; McClain v. Abshire, 72 Mo.App. 390; Nunn v. Carroll, 83 Mo.App. 140; Alkire Grocer Co. v. Ballenger, 137 Mo. 369. (5) The court properly in granting the decree for plaintiffs ordered defendant Mitchell to surrender possession of the land. Baker v. St. Louis, 75 Mo. 671; Woodsworth v. Tanner, 94 Mo. 124; Lander v. Ziehn, 150 Mo. 415; State ex rel. v. Evans, 176 Mo. 327. (6) Geo. M. Siling was not only a competent witness in his own behalf, because he is a party in interest seeking to set aside the sheriff's sale as well as the judgment against him, but also he acted as agent for his wife in purchasing the land in controversy from Hendrickson. Sec. 4655, R. S. 1899; Stanton v. Ryan, 41 Mo. 510; Hurdy v. Mathews, 42 Mo. 406; Hoerle v. Kren, 65 Mo. 202; Stiffin v. Bauer, 70 Mo. 405; White v. Chaney, 20 Mo.App. 394; Brickworks v. Thompson, 59 Mo.App. 98; Asbury v. Hicklin, 181 Mo. 672; Leete v. Bank, 115 Mo. 184. Besides, his admissions and testimony were admissible for the protection of the rights of the minor child, Mamie Siling. Boynton v. Miller, 144 Mo. 681; Moeckel v. Heim, 134 Mo. 576; Cramer v. Hurt, 154 Mo. 112; Hach v. Rollins, 158 Mo. 190. (7) As the evidence showed the land was held by Geo. M. Siling as trustee for his minor child, Mamie, in no aspect of the case can the defendant Mitchell subject her land to the payment of the purchase price he bid. Even as to Geo. M. Siling the doctrine of subrogation cannot be invoked by Mitchell to have his purchase money paid back. (a) Mitchell knew Geo. M. Siling had no record title to the land; and he bought at his peril; the rule of caveat emptor applied to him. Stephens v. Ellis, 65 Mo. 456; Cashion v. Faina, 47 Mo. 133; Haley v. Bagley, 37 Mo. 363; Estes v. Alexander, 90 Mo. 453; Throckmorton v. Pence, 121 Mo. 57; Plaster v. Grabeel, 160 Mo. 674; Burke v. Brown, 148 Mo. 309. (b) And any mistake or ignorance as to the law could be no ground for relief to him. Ins. Co. v. Enslin, 46 Mo....