Springfield Engine & Thresher Co. v. Donovan

• Decision Date: 07 February 1899
• Court: Missouri Supreme Court
• Parties: SPRINGFIELD ENGINE & THRESHER CO v. DONOVAN et ux.

49 S.W. 500

147 Mo. 622

SPRINGFIELD ENGINE & THRESHER CO v. DONOVAN et ux.

Supreme Court of Missouri, Division No. 2.

February 7, 1899.

MARRIED WOMEN — DEEDS — DURESS — ACKNOWLEDGEMENT — MORTGAGES — FORECLOSURE — BIDS — PLEADING — MOTION TO STRIKE — WAIVER — EVIDENCE — EJECTMENT — JUDGMENT.

1. Error in denying a motion to strike a part of an answer is waived by afterwards replying to that part.

2. The beneficiary in a trust deed securing a debt may make a valid bid by directing the trustee, by letter, to enter a bid in his behalf in a certain sum, less than the amount of the debt.

3. Where a wife in good faith acknowledges a deed as her free act, and the officer so certifies in good faith, she cannot, as against a bona fide grantee, assert that the was unlawfully forced by her husband to execute the deed.

4. To overcome a certificate of acknowledgment of a deed by a married woman on the ground of duress, the evidence must be convincing, a bare preponderance being insufficient.

5. Where the beneficiary in a trust deed securing a debt buys in the property at trustee's sale, and brings ejectment, the court cannot, of its own motion, on deciding against plaintiff's right to possession because of invalidity of the trustee's sale, award plaintiff a judgment for the debt and decree a foreclosure of the deed.

Appeal from circuit court, Marion county; Reuben F. Roy, Judge.

Ejectment by the Springfield Engine & Thresher Company against Daniel Donovan and Josephine Donovan, his wife. A judgment was rendered from which plaintiff appeals. Reversed.

Ejectment for the possession of a piece of ground 120 by 123 feet; being part of lot 1 in block 2, Sloan's addition to the city of Palmyra. The petition is in the usual form, and the original answer a general denial. The case was in this court on a former occasion (120 Mo. 423, 25 S. W. 536), when the judgment was reversed and the cause remanded. After its reversal and remand, defendants filed an amended answer, in which they admit the possession, but deny all other allegations in the petition. They then aver that the notes, and deed of trust given to Thomas Cocke to secure their payment, under which plaintiff derives title, were signed by defendant Daniel Donovan in pretended consideration of the purchase by him and one Crane of a certain engine and thresher manufactured by plaintiff; and they say that said Daniel was induced to make said purchase and to execute said notes and deed of trust by fraud, misrepresentations, and deceit. They say "that said plaintiff, by its agents in that behalf, in order to procure the execution thereof by said Daniel Donovan, fraudulently induced said Daniel to drink intoxicating liquor until he was drunken and his judgment was overthrown, in which condition * * * he was induced by plaintiff's agents to sign said notes and deed of trust. And defendants further state that said Daniel, being so drunken, by force and threats of violence forced defendant Josephine, his wife, to sign and acknowledge said deed of trust; that she was unwilling so to do and thus incumber their homestead, and so to do refused until forced as aforesaid by her said co-defendant." And it was further averred in said answer that Daniel Donovan was incompetent to transact business when he signed said notes and deed of trust, and was induced to do so by the fraudulent representation of plaintiff as to the value of the machinery bought by him, and the profits to be received therefrom, and they were not, therefore, binding on him in law; and as their execution was obtained by fraud, and they were not binding in equity, the court was asked to set aside the deed of trust and cancel the notes. It was further averred that Donovan and Crane also executed a chattel mortgage on the machinery bought, to secure the payment of the three notes given therefor; that said machinery had been sold by plaintiff, and $1,250 realized at such sale, which amount had not been credited on the notes, and which, if so credited, would have left but a small amount due thereon, and that the real estate had been sold as if nothing, or very little, had been paid by the sale of the machinery; that the real estate was of the value of $1,500; that there were no bidders at the sale; that appellant sent a bid of $500 by mail, with the request to the trustee to consider such bid, and, if no one bid more, to knock off the premises to plaintiff; that no other bid was made, and the trustee considered the $500 as bid, and declared the premises sold to plaintiff for that sum, and made it a deed, reciting therein that consideration. And the court was asked to set aside said pretended sale and deed because there was no bid made at the same, or, if the $500 be considered a lawful bid, then it was entirely inadequate; and they asked that the sale and deed be set aside for that reason, and that defendants be granted general relief. On September 2, 1895, plaintiff filed a motion to strike out all of defendants' amended answer, except that part which admits the possession of the property sued for, and that it is their homestead, upon the ground that it is immaterial, constitutes no defense to plaintiff's action, and sets up matter as a defense not included in the former answer. This motion was overruled, and exceptions to the ruling of the court duly taken and saved. On September 3, 1895, plaintiff filed a reply to the amended answer, denying all new matter therein contained. The court submitted six issues to the jury, but, as all of them were withdrawn except the third and sixth, only those will be further noticed. The third directed the jury to find as to whether or not there was realized from the private sale of said engine and thresher by the plaintiff the sum of $1,250. The sixth issue was as follows: "The defendants affirm and plaintiff denies that the defendant Daniel Donovan by acts of violence forced defendant Josephine Donovan to sign and acknowledge said deed of trust, and that she was unwilling so to do, and refused to do so until she was forced to do so as aforesaid by the defendant Daniel Donovan." The jury found on issue No. 3 that the engine and thresher sold at said private sale for the sum of $1,176, and on the sixth issue for defendants. The court then found that, at the alleged sale of the land by the sheriff of Marion county as trustee, plaintiff was not a bidder for the land, and that no bid therefor was made by any one, and rendered judgment in favor of plaintiff against Daniel Donovan for the sum of $1,075.50, and rendered a decree setting aside the deed of trust as to Mrs. Donovan, and foreclosing it as a mortgage as to Daniel Donovan, and directing a sale of his interest in the property to pay the judgment. After unsuccessful motion for a new trial, plaintiff appealed.

H. J. Drummond, for appellant. W. M. Boulware and W. R. Anderson, for respondents.

BURGESS, J. (after stating the facts).

Plaintiff showed a regular chain of title to the property from defendants under deed of trust executed by them, and deed from the trustee therein named, and was entitled to judgment for its possession, unless the case made out by it was overcome by the evidence on the part of defendants. The evidence adduced by defendants to sustain the fifth issue was to the effect that plaintiff had offered $500 by letter to the trustee before the day of sale of the property under the deed of trust, which was accepted by him at the sale, which the court held not to be a bid; and, to sustain the sixth issue, the evidence tended to show that Mrs. Donovan was induced to sign the deed of trust against her will, by threats of violence and intimidation by her husband. On the issues submitted the plaintiff asked the following instructions, which were refused: "If the jury find from the evidence that the defendant Josephine Donovan acknowledged the deed of trust of date of June 29, 1886, read in evidence, to be her free act and deed, the jury should find for plaintiff on issue No. 6, although the jury may further believe from the evidence that her husband, Daniel Donovan, coerced her, the said Josephine Donovan, into the signing and acknowledgment of said deed of trust. (3) If the jury find from the evidence that the defendant Josephine Donovan acknowledged before Mathew Fletcher, a justice of the peace for Marion county, that she executed the said deed of trust of date of June 29, 1886, read in evidence, they should find for plaintiff on issue No. 6." Over the objection of plaintiff, the court, at the instance of defendants, instructed the jury as follows: "(3) The finding on the sixth issue should be for the plaintiff, unless the jury find from the evidence in the cause that the defendant Josephine Donovan at the time of the execution of the said deed of trust was unwilling to execute said deed of trust, and was by threats of violence on the part of Daniel Donovan forced to execute the same, and that she would not have executed the same, had it not been for said threats of violence." To the action of the court in refusing the instructions asked by plaintiff, and in giving instruction No. 3 on the part of defendants, plaintiff duly saved exceptions.

The first point for consideration is with respect to the action of the court in overruling plaintiff's motion to strike out the parts of defendants' amended answer before indicated. It seems unnecessary to say more upon this question than that plaintiff, by pleading over, by way of reply, to that part of the answer against...