Woods v. Cantrell

• Decision Date: 14 February 1949
• Docket Number: 40734
• Citation: 218 S.W.2d 613,358 Mo. 1006
• Parties: Seth Woods, Individually and as Administrator of the Estate of Minnie Woods, Deceased; Robert B. Woods, Lillie Woods, Executrix of the Estate of H.T. Woods, Deceased; Clyde Woods, Marie Schafer Hiser, and Roscoe E. Schafer, Plaintiffs and Appellants, v. Lester Cantrell and Frances H. Cantrell, Defendants and Appellants
• Court: Missouri Supreme Court

218 S.W.2d 613

358 Mo. 1006

Seth Woods, Individually and as Administrator of the Estate of Minnie Woods, Deceased; Robert B. Woods, Lillie Woods, Executrix of the Estate of H.T. Woods, Deceased; Clyde Woods, Marie Schafer Hiser, and Roscoe E. Schafer, Plaintiffs and Appellants, v. Lester Cantrell and Frances H. Cantrell, Defendants and Appellants

No. 40734

Supreme Court of Missouri

February 14, 1949

Rehearing Denied March 14, 1949.

Appeal from Greene Circuit Court; Hon. Hiram McLaughlin Judge.

Affirmed.

Harold T. Lincoln, Arch A. Johnson, Joseph N. Brown, and Frank B Williams for plaintiffs-appellants.

(1) The court erred in overruling plaintiffs' motion to correct an irregularity, patent on the face of the record. The motion was timely filed and was well taken. The statute is plain that judgments of a court of record may be set aside for irregularity, on motion, made within three years after the term at which such judgment was rendered. Sec. 1267, R.S 1939; Shuck v. Lawton, 249 Mo. 169, 155 S.W. 20; Wooten v. Friedberg, 198 S.W.2d 1; Poindexter v. Marshall, 193 S.W.2d 622; Weatherford v. Spiritual Christian Union Church, 163 S.W.2d 916. (2) This method of vacating a judgment was well known at common law and the common law rule is recognized by the statute; the statute merely extends the time for three years after the term at which the judgment was rendered. Poindexter v. Marshall, supra. (3) The motion permitted by the statute is in the nature of an independent proceeding, from which an appeal will lie. Boone v. Ledbetter, 200 S.W.2d 601; Poindexter v. Marshall, supra; Harrison v. Slaton, 49 S.W.2d 31; Audsley v. Hale, 303 Mo. 451, 261 S.W. 117; Scott v. Rees, 300 Mo. 123, 253 S.W. 998; Scott v. Crider, 217 Mo.App. 1, 272 S.W. 1010; State ex rel. Potter v. Riley, 219 Mo. 667, 118 S.W. 647. (4) The statute is useful for the partial vacation and correction of a judgment as well as for setting it aside altogether. Thomas v. Boatright, 263 S.W. 464. (5) An irregularity, for which a judgment may be set aside under Section 1267 on motion made within three years, is a want of adherence to some prescribed rule or mode of procedure, consisting in omitting to do something that is necessary for the due and orderly conduct of the suit, or in doing it at an unseasonable time or in an improper manner. Tureck v. Tureck, 207 S.W.2d 780; Wooten v. Friedberg, 198 S.W.2d 1; Crabtree v. Aetna Life Ins. Co., 341 Mo. 1173, 111 S.W.2d 103; Irregular Judgment, 22 Words and Phrases, Perm. Ed. 660, Cumulative Pocket Part, 153. (6) It is the law that the court cannot, of its own motion, set itself in action. It has no power to decide questions except such as are presented by the pleadings. Where a court adjudicates a matter not embraced within the issues made by the pleadings, that part of the matter so adjudicated is coram non judice and void. Texas Empire Pipe Line Co. v. Stewart, 35 S.W.2d 627; State ex rel. McManus v. Muench, 217 Mo. 124, 117 S.W. 25. (7) A decree, or any portion of a decree, which has no matter in the pleading to rest upon, is void, because pleadings are the very foundation of judgments and decrees. There must not only be jurisdiction as to the persons affected by the decree, by having them before the court by process or appearance, but there must be jurisdiction of the matter acted upon, by having it also before the court in the pleadings. If either is wanting, the decree or judgment is void, not merely voidable or erroneous. Charles v. White, 214 Mo. 187, 112 S.W. 545. (8) If the irregularity mentioned in Section 1267 appears in the judgment itself, or on the face of the proceedings antecedent to the judgment, as does the irregularity in the decree in the case at bar, it is subject to be corrected on motion within three years. Wooten v. Friedberg, 198 S.W.2d 1; Cross v. Gould, 131 Mo.App. 585, 110 S.W. 672; Badger Lumber Co. v. Goodrich, 353 Mo. 769, 184 S.W.2d 435. (9) The proceedings antecedent to judgment include the pleadings in the cause. Crabtree v. Aetna Life Ins. Co., supra. (10) The balance of the judgment, in which the court attempted to grant defendants, mortgagees, relief not asked in their pleading by giving them a participating share in the equity of redemption, was, under the circumstances, coram non judice and void, and was correctible on plaintiffs' motion filed after the lapse of the term. Charles v. White, 214 Mo. 187, 112 S.W. 545, 21 L.R.A. (N.S.) 481; Dickey v. Dickey, 132 S.W.2d 1026; Raney v. Home Ins. Co., 213 Mo.App. 1, 246 S.W. 57; Brown v. Wilson, 348 Mo. 658, 155 S.W.2d 176; Riggs v. Moise, 344 Mo. 177, 128 S.W.2d 632; State ex rel. Riggs v. Seehorn, 344 Mo. 186, 125 S.W.2d 851; Finley v. Smith, 352 Mo. 465, 178 S.W.2d 327; Friedel v. Bailey, 329 Mo. 22, 44 S.W.2d 9; Hecker v. Bliesh, 319 Mo. 149, 3 S.W.2d 1008; Congregation B'Nai Abraham v. Arkey, 323 Mo. 776, 20 S.W.2d 899; Wolz v. Vernard, 253 Mo. 67, 161 S.W. 760; Brandt v. Farmers Bank, 117 S.W. 2d) 671. (11) If the facts pleaded show that the court did not have power to grant the relief prayed the court's action in granting such relief is coram non judice and void. Tureck v. Tureck, 207 S.W.2d 780. (12) The lower court erred in rejecting plaintiffs' tender of payment of the amount of the mortgage debt made to defendants and deposited in the registry of the court, and in holding that any tender, in order to be "compatible" with the court's judgment, would have to be the net amount of the mortgage debt, plus one-half of the equity of redemption, and the court further erred in denying plaintiffs' request that they be permitted to redeem the real estate in question from the lien and encumbrance of said equitable mortgage. The equity of redemption is a favorite with the courts of equity, and is so highly cherished and protected, that it became a maxim, "once a mortgage always a mortgage." The equity doctrine, is that a mortgage is mere security for the debt, and only a chattel interest, and that until a decree of foreclosure, the mortgagor continues the real owner of the land. Rielly v. Cullen, 159 Mo. 322, 60 S.W. 126; Shepard v. Wagner, 240 Mo. 409, 144 S.W. 394 Lipscomb v. Talbott, 243 Mo. 1, 147 S.W. 798; Stephens v. Stephens, 232 S.W. 979; Howard v. Harris W. & T. Leading Equity Cases, 1 Vern. Ch. 33, 23 Reprint 288; 2 Hughes on Procedure 1069; 42 C.J. 348, Sec. 2075; (13) The character of the transaction is determined in its inception. If it was a mortgage in the beginning, it remained so. Philips v. Jackson, 240 Mo. 310, 144 S.W. 112; Williamson v. Frazee, 194 Mo. 320, 242 S.W. 958. (14) The equitable mortgagors have the right to invoke the powers of a court of equity to enforce their right to redeem. Garrison v. Schmicke, 354 Mo. 1189, 193 S.W.2d 614; 79 A.L.R. 946. (15) The only remedy the court can afford, in such cases, is to order that an account be taken, and divest the title when the debt is paid. Mayberry v. Clark, 317 Mo. 442, 297 S.W. 39. (16) Plaintiffs having tendered to defendants full payment of the mortgage debt, and having deposited the tender in court, the court erred, as matter of law, in finding that it was necessary to sell the land in question and in directing the sheriff to sell the same for the purpose of dividing, equally, between plaintiffs and defendants, any amount of money realized over and above the amount of the mortgage debt, for the purpose of enforcing the void portion of the prior judgment of September 15, 1945. Said finding and order were based upon, and constituted an attempt by the court, after remand, to enforce the void provisions of the decree of September 15, 1945, and consequently were, themselves, coram non judice and void, and the court erred in making said order of sale. (17) The aforesaid irregular provisions of the decree of September 15, 1945, being coram non judice and void, all proceedings founded on said void provisions are themselves regarded as invalid. Being worthless in themselves, all proceedings founded upon them are equally worthless. In re: Main's Estate, 236 Mo.App. 88, 152 S.W.2d 696; 31 Am. Jur., Judgments, sec. 430; Ripley v. Bank of Skidmore, 198 S.W.2d 861; Ruckert v. Moore, 317 Mo. 228, 295 S.W. 794; Woods v. Cantrell, 201 S.W.2d 311.

John Hosmer and Fred A. Moon for defendants-appellants.

(1) The contention of plaintiffs that all of the judgment of the trial court as of September 15, 1945, except that part which declares the deed an equitable mortgage is "Irregular" within the meaning of Section 1267 R.S 1939, and should be corrected on motion, is untenable because the second count of the second amended petition, on which this judgment is based, is sufficient in its allegations to sustain that part of the judgment challenged by the plaintiffs as "Irregular." (2) The measure or the character of a petition is determined by the facts stated in the petition, and not by the prayer for relief. State ex rel. Nunnelee v. Horton Land & Lumber Co., 161 Mo. 664; Way v. Raby, 49 S.W.2d 672; Richards v. Earls, 133 S.W.2d 381, 345 Mo. 260; Superior Press Brick Co. v. St. Louis, 152 S.W.2d 178. (3) The relief prayed for is no part of plaintiffs' cause of action. Menke v. Rovin, 180 S.W.2d 24, 352 Mo. 826. (4) That part of the judgment in this case that the plaintiffs claim is "Irregular" is based on the allegations pleaded by the plaintiffs, solemnly testified to by the plaintiffs and their witnesses and found by the court to be true. (5) Section 1627 R.S. 1939, as well as all decisions rendered thereunder, must be now read in the light of Sections 57 and 82, General Code Civil Procedure, pages 378 and 379, Laws 1943. Section 57. "All pleadings shall be so construed as to do substantial justice." Section 82. "When issues not raised by the pleadings are tried by express or implied consent of the parties...