Stewart v. Omaha Loan & Trust Co.

• Decision Date: 04 June 1920
• Docket Number: No. 20879.,20879.
• Citation: 283 Mo. 364,222 S.W. 808
• Court: Missouri Supreme Court
• Parties: STEWART V. OMAHA LOAN & TRUST CO. et al.

222 S.W. 808

283 Mo. 364

STEWART

V.

OMAHA LOAN & TRUST CO. et al.

No. 20879.

Supreme Court of Missouri, Division No. 2.

June 4, 1920.

Rehearing Denied June 25, 1920.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

Suit to quiet title by John D. Stewart against the Omaha Loan & Trust Company and others, in which a judgment was rendered by default, and within three years thereafter James Corbett, as administrator of the estate of Eliza J. Leverich, deceased, petitioned to set aside the judgment finding plaintiff the owner in fee, and alleged that deceased held a note secured by deed of trust on the land. On hearing the judgment was set aside, and the administrator permitted to plead to plaintiff's petition. Judgment for plaintiff, and defendants appeal. Affirmed.

Barton & Impey and Hiett & Scott, all of Houston, and H. H. Baldridge, for appellants.

Lamar, Lamar & Lamar, of Houston, for respondent.

WALKER, J.

This is a suit to quiet title to certain land in Texas county. The plaintiff prevailed below, and the defendants have appealed. In April, 1901, Edwin McNinch and wife, the owners of the land in question, executed certain notes of even date to the Omaha Loan & Trust Company, three aggregating $140, due respectively April 1, 1902, April 1, 1903, and April 1, 1904, and one other note for $1,000 due April 1, 1908. To secure the payment of these notes the makers executed to the payee two separate deeds of trust, one to secure the payment of the three notes aggregating $140, and the other to secure the payment of the note for $1,000. The same person was named as trustee in each. These deeds were acknowledged on the same day, and subsequently they were simultaneously filed for record in the office of the recorder of deeds for Texas county. In neither is there any reference to the other, nor is there anything other than the respective dates of maturity of the notes therein described, if such can be so construed, to indicate a priority of lien of one over the other. On the 13th day of August, 1904, the deed of trust securing the payment of the three notes for $140 was foreclosed, the land sold, and one W. F. Cunningham became the purchaser. Two years later he conveyed the land by deed of general warranty to Byron De Forrest and Frank Mautz. The grantor convenants" in this deed "against all claims, etc., except a deed of trust to the Omaha Loan & Trust Company and to G. P. Rodgers and judgments in Houseden suits." In December, 1909, Frank Mautz and wife conveyed the land by quitclaim deed to Byron De Forrest. This deed contains no reference to any incumbrance. Some 10 or 12 days thereafter Byron De Forrest and wife conveyed the land by warranty deed to John D. Stewart, the plaintiff, who instituted the suit on which the appeal herein is based. After service by publication against unknown parties, a judgment by default was rendered, and within three years thereafter, under section 2103, R. S. 1909, the administrator of the estate of Eliza J. Leverich petitioned the court to set aside the judgment in which it had been found that the plaintiff was the owner in fee of the land in question for reasons, among others therein alleged, that Eliza J. Leverich was the owner of the note for $1,000, and the deed of trust on said land to secure the payment of same given April 25, 1901, by Edwin McNinch and wife to the trustee of the Omaha Loan & Trust Company; that said Eliza J. Leverich died testate in New York in February, 1907; that no service in the suit brought by John D. Stewart, the plaintiff herein, in any wise affecting her interest in said land, was ever had upon her or any one representing her other than the attempted service by publication upon unknown parties; that no knowledge concerning said proceeding was ever had by said Eliza J. Leverich; and that the petitioner, her administrator, was not apprised of said suit until a short time before the filing of this petition to set aside the judgment. In brief, the petition contained other allegations appropriate and proper to a pleading of this character, not necessary to be set out herein. The petition prayed in conclusion that all parties in interest, referring specifically to those who had acquired title to portions of said land through the plaintiff, be made parties to this suit, and that the judgment be set aside, and that the petitioner be permitted to plead to plaintiff's petition theretofore filed upon which the judgment of default had been entered. Upon a hearing the court set aside the judgment and permitted the administrator to plead to plaintiff's petition. He thereupon filed an answer and a cross-bill alleging that the note for $1,000 was still due and unpaid, and that the deed of trust to secure the payment of same constituted a prior lien or claim upon said land to the right, title, and claim of plaintiff, and that the deed of trust to secure the payment of the $1,000 note be foreclosed on account of its alleged priority as a lien. The sufficiency of the pleadings is not a matter at issue except in so far as plaintiff's contention is concerned that the answer does not plead any facts which would authorize a court of equity to subordinate the lien of the deed of trust under which plaintiff claims to that under which the defendant claims. Aside from this contention, the vexing question is as to which of the two deeds of trust is entitled to priority.

The appellant relies for a reversal upon the following errors:

(1) The court erred in finding the issues for the plaintiff and in rendering judgment accordingly.

(2) The court erred in excluding evidence offered by defendant to prove that the deed of trust under which defendant claims is a first deed of trust, and that the deed of trust under which plaintiff claims is a second deed of trust.

(3) The court erred in rejecting testimony to prove that when the deed of trust claimed by defendant was sold to Eliza J. " Leverich it was represented to her to be a first mortgage The rules of procedure in suits to quiet title are the same as in other civil actions. This is clearly contemplated by section 2535, R. S. 1909, and is expressly so provided in section 2536, R. S. 1909. This being true, the relief afforded in a proceeding under this statute is to be measured by the pleadings in each particular case. To rule otherwise, as Bond, J., tersely said in Toler v. Edwards, 249 Mo. loc. cit. 160, 155 S. W. 27, would be "to destroy the symmetry of the law." Confirmatory of this conclusion, Lamm, J., said in effect in Wotz v. Venard, 253 Mo. loc. cit. 86, 161 S. W. 765, that this statute is "to be administered in conformity to the code of civil procedure, that is, within the lines of scientific pleading and practice. * * * Any other view would make of that remedial act a fruitful womb of confusion and wrong." The ruling seemingly to the contrary in Noble v. Cates, 230 Mo. loc. cit. 202, 130 S. W. 304, "that defendants in an action based upon this statute may, under a general denial, show as a defense any title, legal or equitable, vested in themselves," does not therefore correctly state the law.

The defendants' answer herein denies plaintiff's ownership of the land and alleges generally that the deed of trust thereon to secure the payment of the $1,000 note is a prior lien over plaintiff's claim, right, and title. The remainder of the answer is descriptive of the deed of trust and prays for a foreclosure. The defense should have been limited to the issue thus made. This was not done, and it is now contended by the plaintiff that no facts were pleaded by the defendants which would authorize a court of equity to postpone the lien of the deed of trust under which plaintiff claims to that alleged to be held by defendant administrator, and that he should have been limited in his defense to that made by his answer. As an abstract statement of the rules of procedure this is correct. But the limitation now sought to be imposed is not timely, and was waived by the plaintiff in not objecting at the time to the claim of priority thus interposed. During the trial the plaintiff contented himself with technical objections to the introduction of certain evidence, principally documentary, but having no tendency to determine the question of priority between the two deeds of trust. The trial was conducted as though the answer had set up the equitable defense now objected to by the plaintiff. The case will be reviewed, therefore, upon the theory sanctioned by the parties and recognized by the trial court. McMurray v. McMurray, 258 Mo. loc. cit. 416, 167 S. W. 513; Honea v. Railroad, 245 Mo. loc. cit. 645, 151 S. W. 119; Brier v. Bank, 225 Mo. loc. cit. 684, 125 S. W. 469; Williams v. Railroad, 233 Mo. loc. cit. 675, 136 S. W. 304; Degonia v. Railroad, 224 Mo. loc. cit. 588, 123 S. W. 807; Riggs v. Metro. Ry. Co., 216 Mo. loc. cit. 304, 115 S. W. 969; Hof v. Transit Co., 213 Mo. loc. cit. 470, 111 S. W. 1166; Taylor & Sons v. Railroad, 213 Mo. loc. cit. 726, 112 S. W. 59; Earls v. Earls (App.) 182 S. W. 1020.

When a case has been tried without the objection that the pleadings did not raise a certain issue, this objection, when made for the first time in the appellate court, will not be entertained. But two exceptions may be noted to this rule, one that of the court's jurisdiction, and the other that a cause of action has not been stated. These cardinal defects are not affected by waiver, and may be raised at any time. Williams v. Keef, 241 Mo. loc. cit. 375, 145 S. W. 425; Jackson v. Johnson, 248 Mo. 692, 154 S. W. 759. In view of all of which we need not further concern ourselves with the limitations now sought by plaintiff to be placed upon the defendants' right to persist here in the attitude which, free from plaintiff's challenge, was maintained in the trial court. 3 C. J. § 621, p. 725.

II. Under well-established principles of law there can be no controversy as to the purpose for which the deeds of...