Stafford v. Shinabargar

• Decision Date: 17 April 1935
• Citation: 81 S.W.2d 626,336 Mo. 856
• Parties: Emily D. Stafford, Appellant, v. J. S. Shinabargar, James B. Robinson as Administrator of the Estate of James B. Workman, and Eugene Workman
• Court: Missouri Supreme Court

81 S.W.2d 626

336 Mo. 856

Emily D. Stafford, Appellant, v. J. S. Shinabargar, James B. Robinson as Administrator of the Estate of James B. Workman, and Eugene Workman

Supreme Court of Missouri

April 17, 1935

Appeal from Andrew Circuit Court; Hon. Guy B. Park, Judge.

Affirmed.

Randolph & Randolph, Thompson & Griswold and A. Bowers for appellant.

This action to quiet title where both sides claim the legal title and neither side set up any equitable title, is a law case and should be tried by a jury unless a jury is waived by the parties. Sec. 1520, R. S. 1929; Const. of Mo., Sec. 28, Art II; Jacobs v. Warden, 317 Mo. 1133; Tohr v Edwards, 249 Mo. 152; Cousins v. White, 246 Mo 309; Hafner v. Miller, 299 Mo. 214; Turner v. Hine, 297 Mo. 153; Welch v. Veasley, 286 Mo. 93; Ebbs v. Neff, 325 Mo. 1182; Lee v. Conran, 213 Mo. 404. This case rests entirely upon one question of fact, did the plaintiff sign, acknowledge and deliver the $ 10,000 deed of trust on her homestead, the land in controversy? The last above case holds that, "An issue of fact in an action for the recovery of specific real property must be tried by a jury." Lee v. Conran, 213 Mo. 404. The defendant set up a legal title by reason of the deed of trust and even if he also sets up an equitable title (which we claim the defendant did not) then the plaintiff cannot be denied a jury trial. It is only when the only defense is equitable that the plaintiff is not entitled to a jury. Grayson v. Weddle, 80 Mo. 42; Freeman v. Wilkinson, 50 Mo. 554; Benvist v. Thomas, 121 Mo. 660. Issues involving the title to land should be tried by jury. Parker v. Cassingham, 130 Mo. 348; Sec. 948, R. S. 1929.

T. A. Cummings, A. F. Harvey, F. L. Cook, Wright & Ford and Shinabargar, Blagg, Livengood & Weightman for respondents.

(1) This is a suit to cancel a deed of trust and is, therefore, a proceeding in equity. 9 C. J. 1161, sec. 4; Robertson v. Mut. Life Ins. Co., 123 Mo.App. 238. (2) If the cause is one in equity, the facts must be determined by the chancellor. Neither party is entitled to a jury in a proceeding in equity. Buton v. Pippin, 192 Mo. 469. (3) The sole question in this case, is whether or not the plaintiff was entitled to a trial by jury. This question must be determined from the issues raised by the pleadings and the relief asked. Lee v. Conran, 213 Mo. 404; Williamson v. Frazee, 242 S.W. 958, 294 Mo. 320.

OPINION

Frank, J.

Action to cancel a $ 10,000 note and deed of trust securing it on certain lands in Nodaway County, Missouri, and to decree the title to said lands in fee in plaintiff. The decree below was for defendants and plaintiff appealed.

Defendant, J. S. Shinabargar who was named in said deed of trust as trustee, sold said lands at public auction in accordance with the terms of said deed of trust for $ 4,000 to Eugene Workman, Charles O. Workman and Amanda Workman.

The petition alleges that prior to and on the date of the execution and recording of said deed of trust plaintiff was the owner of the land in fee; that neither the plaintiff, Emily D. Stafford nor her husband James O. Stafford signed or acknowledged said deed of trust; that said $ 10,000 note and the deed of trust securing it were both forgeries and for that reason the deed of trust created no lien upon said land and is not binding on plaintiff, but that it does cast a cloud on plaintiff's title and for that reason it should be canceled. The petition further alleges that defendants acquired no title to said lands by their purchase at the sale under said deed of trust, and that equity and justice demand that they be required to produce said fraudulent and forged note and deed of trust in court in order that the court might order them canceled.

The prayer of the petition is as follows:

"WHEREFORE, plaintiff prays for an order of this Court directing the above named defendants to bring into Court said above mentioned attempted, and purported, promissory note and said above mentioned, attempted and purported Deed of Trust and that the Court set aside, cancel and for naught hold said note and deed of trust, and the Court by its decree forever, quiet the title of the above described real estate in this plaintiff against the claims of the defendants and each of them as to any right, title and interest in and to the above described real estate by virtue of said above mentioned attempted promissory note and deed of trust, and for her costs in this behalf expended."

The answer of defendant J. S. Shinabarger alleges that he, as trustee, sold said land in accordance with the terms of said deed of trust to Eugene, Charles and Amanda Workman for $ 4,000; that said purchasers tendered to him the amount of their said bid, but on account of the claim of plaintiff that said deed of trust was forged, fraudulent and void, and on account of threats of suit against him by plaintiff, he refused to accept the purchase price tendered by the purchasers, and refused to execute to them a trustee's deed to said lands, but stands ready and willing to do so upon direction of the court. The prayer of his answer is that the court direct him as to his duties in the premises and protect his interest therein.

The answer of defendant, Eugene Workman alleges a state of facts which, if true, show that the $ 10,000 note and deed of trust securing it were both executed by plaintiff and her husband, and are both valid and binding instruments, and that plaintiff received the full consideration of $ 10,000 therefor. The prayer of defendant's answer is as follows:

"WHEREFORE, this defendant prays the court to hear and determine all matters presented to the court by plaintiff's petition and the separate answers of the defendants; that upon such hearing the court will adjudge and decree that the said $ 10,000 note and deed of trust mentioned in plaintiff's petition and in his answer and in the answer of the other defendants are not forgeries, but on the contrary are the true and lawful acts of plaintiff and her said husband, and they are in all respects lawful and binding; and this defendant further prays the court to adjudge and decree that the aforesaid foreclosure of the said deed of trust by the defendant J. S. Shinabargar as trustee is and was a lawful sale of the said land by the said trustee, and that he, the said trustee be ordered and directed by the court to execute and deliver to the said Eugene Workman, Amanda Workman and Charles O. Workman, a trustee's deed, conveying to them the aforesaid lands; upon the payment to the said trustee of the purchase price thereof bid at said sale and for all other and proper relief."

When the case was called for trial plaintiff demanded a jury which the court refused. The case was tried before the court sitting as a chancellor. The chancellor found the facts to be as alleged in defendants' answer and entered the following decree:

"WHEREFORE,...