Wolz v. Venard
| Decision Date | 06 December 1913 |
| Parties | MICHAEL WOLZ, Executor of KATE A. LOWEN, v. FRANKLIN VENARD et al.; ROBINSON and ATKINSON, Appellants |
| Court | Missouri Supreme Court |
Appeal from DeKalb Circuit Court. -- Hon. A. D. Burnes, Judge.
Reversed and remanded.
Hewitt & Hewitt and E. G. Robison for appellants.
(1) It is the well-established rule of pleading that every fact the plaintiff, in order to recover, must prove, must be pleaded and alleged in the pleading, so that the issue can be made thereon. Shohoney v. Railroad, 223 Mo. 671; Nervins v. Moore, 221 Mo. 357; Verdin v. St Louis, 131 Mo. 151; Lantz v. Krug, 93 Mo. 513; Pier v. Heinrich, 52 Mo. 336; Murphy v Wilson, 44 Mo. 317. The plaintiff having based her cause of action upon the mistake of the scrivener, in order to recover it was necessary to allege and prove he acted for both the parties to the trust deed. Brocking v Straat, 17 Mo.App. 305; Benn v. Pritchett, 163 Mo. 572; Dougherty v. Dougherty, 204 Mo. 238; Meek v. Hurst, 223 Mo. 696. (2) The defendants' demurrer to plaintiff's evidence should have been sustained, for the reason that the evidence does not show a mutual mistake, but if anything, a mistake of some one who drafted the trust deed at the instance and request of grantor Neff alone, which is not sufficient to have reformation by plaintiff. Brocking v. Straat, 17 Mo.App. 305; Benn v. Pritchett, 163 Mo. 560; Dougherty v. Dougherty, 204 Mo. 231; Meek v. Hurst, 223 Mo. 692. (3) The court erred in decreeing Elmer Neff to be the owner of the land in controversy, even though the plaintiff's trust deed should be reformed. He purchased it under the agreement, and according to the admitted and uncontradicted evidence Elmer Neff paid nothing for the land, and, if he fails in this suit is to pay nothing. Bailey v. Winn, 101 Mo. 655. (4) Three sales were had under judgment against Ransom Neff, and at each sale David Atkinson was the purchaser, and the last was a valid sale and conveyed all interest of Ransom Neff, if at the time of the levy he was the owner thereof. This is conceded by plaintiff and other defendants, who deny he was the owner. The appellants contend he was the owner and that the sale by Meek, sheriff of DeKalb county, on May 3, 1909, divested Ransom Neff of his title, and vested same in David Atkinson, which title vested in Joseph Robison under the covenants of warranty in the deed previously made by Atkinson to Robison. Sec. 2871, R.S. 1909. The court erred in not reviving the lien of the judgment of David Atkinson against Ransom S. Neff, and rendering judgment in his favor for same, as all parties were in court. R.S. 1909, sec. 2535.
O. M. Shanklin for respondent Elmer L. Neff.
(1) The first and second sheriff's deeds to Atkinson were clearly void because of their dependence on an execution from the wrong court. Sec. 2166, R.S. 1909. (2) The deed from Ransom Neff and wife is regular and recites a valid consideration. It therefore conveyed the whole title to the land to Elmer Neff. (3) Whether Elmer Neff paid the whole or any part of the consideration recited in his deed cannot affcct the sufficiency of the conveyance. The recited consideration cannot be impeached for the purpose of destroying the conveyance. Draper v. Shoot, 25 Mo. 202; Wishart v. Gerhart, 105 Mo.App. 116. (4) If the defendant Atkinson would deny the payment he must ground his denial on an allegation of fraud against himself as a creditor. This he failed to do, though Elmer Neff specifically pleaded his absolute title to the land by virtue of the deed from Ransom and his wife. Montgomery Co. v. Auchley, 103 Mo. 499; County of Montgomery v. Auchley, 92 Mo. 126; Jones v. Shepley, 90 Mo. 307; Saunders v. Blythe, 112 Mo. 5; Bobb v. Bobb, 7 Mo.App. 507. (5) Atkinson had no lien, since the liens of the justice transcript judgments had expired and the judgment obtained in the circuit court had never been certified to the DeKalb county records. Secs. 2125, 2164, 2165, R.S. 1909. (6) Elmer Neff thus having the title and Ransom having none, the third sheriff's deed purporting to convey the interest of Ransom conveyed nothing. (7) The DeKalb Circuit Court had no jurisdiction to revive the judgments originally rendered in the circuit court of Buchanan and Andrew counties; nor did the appearance of the parties confer such jurisdiction, as it would be in direct contravention of the statutes. Sec. 2166, R.S. 1909.
Wm. M. Fitch for respondent.
(1) Appellant's brief discusses at great length the question that the petition of the plaintiff fails to state a cause of action under the first count. The record shows that these appellants, as defendants below, had filed their answer; at the time of going to trial they withdrew their answers, and filed general demurrers; those demurrers were overruled by the court; these defendants did not stand on their demurrers, but instead of so doing, they refiled their answers and proceeded to trial. By this procedure on the part of these appellants the point raised by their demurrers was and is waived, and they will not be now heard to raise same. State ex rel. v. Bright, 224 Mo. 524; Duff v. Duff, 156 Mo.App. 247. It is likewise held that where a defendant filed a demurrer, which was overruled, and he then answered over, he waived all questions relating to misjoinder and multifariousness in the bill. Hendricks v. Callaway County, 211 Mo. 536; Fuggle v. Hobbs, 42 Mo. 537. These defendants, by pleading over, going to trial, and trying the cause on the merits have waived their demurrers, and should not now be heard to raise same. (2) Two of the sheriff's sales were absolutely void, and passed no title to David Atkinson; both of these sales were based upon a judgment rendered by a justice of the peace in Buchanan county, a transcript thereof filed by the plaintiff therein in the circuit court of Buchanan county, and afterwards a transcript of that transcript was filed in the office of the clerk of the circuit court of DeKalb county. On this transcript so filed in DeKalb county, an execution was issued from the office of the clerk of the circuit court of DeKalb county, and the first and second sales mentioned were had thereunder. These sales passed no title; the clerk of the circuit court of DeKalb county had no power to issue an execution based on the transcript judgment. Sec. 2166, R.S. 1909. The third sale was made after this suit was filed and had been pending some months and David Atkinson and Joseph Robinson had been made parties defendant therein and had been duly summoned as such. But this sale was made in the face of the notices publicly given at the time by the plaintiff and the defendant Elmer L. Neff of their claims respectively in and to this land; in fact, this cause was for trial and was tried at the time said sale was made. At this sale defendant David Atkinson was seeking to sell the interest of Ransom S. Neff in the lands in suit; at that time, and some four years prior thereto, Ransom S. Neff and Sarah V. Neff, his wife, by their joint deed had conveyed said lands to defendant Elmer L. Neff. David Atkinson then had actual notice of the claim of Elmer L. Neff, but notwithstanding such notice, he caused said land to be sold and he bought same. (3) Appellants complain because the court refused to revive the lien of the judgments introduced in evidence by David Atkinson against Ransom S. Neff. But what power, authority or jurisdiction did the court have to revive the lien of those judgments in this proceeding? Appellants cite Sec. 650, R.S. 1899, now Sec. 2535, R.S. 1909, as authority for this procedure. That section does not provide a method of procedure for the revival of a judgment, although it is very comprenhensive concerning the power of the court to determine titles to real estate. The only authority for reviving a judgment in this State in a court of record is in Secs. 2125 to 2132, R.S. 1909. From the above sections it further appears that no judgment can be revived and have its lien extended except by scire facias. Armstrong v. Crooks, 83 Mo.App. 148; Goddard v. Delaney, 181 Mo. 578.
OPINION
In March, 1908, Kate A. Lowen sued an aggregation of defendants in the DeKalb Circuit Court. From a decree in her favor, and in favor of one of their codefendants, two of the defendants (Robison and Atkinson) appeal. Pending that appeal, plaintiff died and the cause stands revived here in the name of Michael Wolz, her executor. For convenience we will continue to speak of her as plaintiff.
As a part of the relief granted to one of the defendants not appealing was against the appealing defendants, and as questions of practice and pleading are submitted, and the decree in one or another angle is assailed, it will be useful to state the situation on such phases with some particularity.
The petition is in two counts. By the first plaintiff sought to reform a deed of trust by correcting the misdescription of land, to declare it a first lien and to foreclose. To that end she averred in said first count, in effect, that she loaned $ 300 to Ransom and Sarah Neff, husband and wife, in July, 1899, evidenced by a note due in three years; that said Neffs, as husband and wife, owned two tracts of land in DeKalb county (we omit description because diffuse and technical, and call them tracts one and two); that tract one comprised twenty-four and seventy-five one-hundredths acres and tract two eight acres; that by agreement between plaintiff and said Neffs, said note was to be secured by a deed of trust in the nature of a mortgage which was to be a first lien on both said tracts; that pursuant to such agreement a deed of trust was executed whereby said agreement to convey said described land was...
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