Wright v. Cobb

• Decision Date: 05 March 1921
• Docket Number: No. 21229.,21229.
• Citation: 229 S.W. 171
• Parties: WRIGHT v. COBB (LAWHORN, Intervener).
• Court: Missouri Supreme Court

229 S.W. 171

WRIGHT v. COBB (LAWHORN, Intervener).

No. 21229.

Supreme Court of Missouri, Division No. 1.

March 5, 1921.

Appeal from Circuit Court, Howell County; E. P. Dorris, Judge.

Suit by H. C. Wright against G. H. Cobb, in which J. G. Lawhorn intervened. From a judgment in favor of defendant and the intervener, plaintiff appeals. Affirmed.

O. L. Haydon and J. N. Burroughs, both of West Plains, for appellant.

O. F. Wayland and W. N. Evans, both of West Plains, for respondent Lawhorn.

BLAIR, J.

Appellant initiated this proceeding by filing a petition whereby he sought to compel respondent Cobb to execute to him a trustee's deed to Howell county lands which Cobb had exposed to sale as trustee in a third deed of trust and which appellant claims to have bought for himself at public vendue. Appellant was the owner of a three-fourths interest in the note secured by the deed of trust under which Cobb exposed the property for sale. The other one-fourth interest was owned by the witness Oaks. This note was held by a West Plains bank as collateral security for indebtedness of appellant and Oaks. Respondent Lawhorn owned the equity in the lands affected by the deeds of trust. Appellant did not make him a party, but the trial court permitted him to come in and file a pleading which the parties refer to as an intervening petition. It sets up, among other things, that respondent had an agreement with appellant whereby he (appellant) contracted (1) on payment of $100 to postpone the sale for six months, or (2) in case the $100 was not paid to buy in the land and permit respondent to redeem within six months, on payment of $100; that respondent thereupon returned to his home in Kansas; that appellant violated his agreement, which, it is alleged, was made with intent to defraud respondent, secure his land, and prevent him from redeeming it; and, in effect, that appellant's bid of $500 at the trustee's sale was several thousand dollars less than the value of the equity; that when respondent was advised appellant was violating his agreement he returned to West Plains, and on April 17th gave notice of intention and a bond to redeem. The sale took place on the 14th of April. Respondent then prayed leave to pay off the mortgage and costs of sale and redeem the property. Appellant did not plead to this. The questions appellant presents do not require a more detailed statement of the pleadings. One question of fact is raised, upon which the relevant evidence hereinafter appears.

I. if the pleading filed by respondent be treated as an intervening petition, as appellant treats it, then an answer to it should have been filed. If it is considered to be in fact an answer filed by an intervening defendant, a reply to the new matter it set up was called for. Since neither the one nor the other was filed, respondent insists the judgment should be affirmed for that reason. There was no motion for judgment, and the case was tried on the evidence. The parties treated the issues as made by the two pleadings filed. Respondent's position is untenable. Bowman v. Stiles, 34 Mo. 144; Edmonson v. Phillips, 73 Mo. loc. cit. 61 et seq.; Gray v. Worst, 129 Mo. loc. cit. 132, 31 S. W. 585; State Bank v. Citizens' National Bank, 114 Mo. App. loc. cit. 669, 670, 90 S. W. 123; St. Louis Union Trust Co. v. Merritt, 158 Mo. App. loc. cit. 658, 139 S. W. 824; Roden v. Helm, 192 Mo. loc. cit. 83 et seq., 90 S. W. 798; Henslee v. Cannefax, 49 Mo. 295. In the cases cited by respondent there seems to have been no question of waiver or adherence to a trial theory.

II. Appellant insists the oral agreement relied upon by respondent is within the statute of frauds and unenforceable. Appellant did not plead the statute; and though the respondent's course at the trial (paragraph I, supra) be held, for the purpose of this question also, equivalent to a general denial, yet appellant did not invoke the statute of frauds by way of interposing it as a ground of objection to the evidence offered to prove the oral contract. In these circumstances, in any event, the defense was waived and cannot be put forward here for the first time. McGowen v. West, 7 Mo. loc. cit. 570, 38 Am. Dec. 468; Condit v. Maxwell, 142 Mo. loc. cit. 275, 276, 44 S. W. 467; Scharff v. Klein, 29 Mo. App. loc. cit. 551; Miller v. Harper, 63 Mo. App. 293; Schmidt v. Rozier, 121 Mo. App. loc. cit. 310 et seq., 98 S. W. 791; Gifford v. Willman, 187 Mo. App. loc. cit. 34, 35, 173 S. W. 53; Neuvirth v. Engler, 83 Mo. App. loc. cit. 423; Render v. Lillard, 61 MI. 206, 160 Pac. 705, L. R. A. 1917B, 1061, 1071, and note. Another reason for the same conclusion appears in the next paragraph.

III. Respondent's home was in Kansas. When he learned of the publication of the notice of sale he went to West Plains. He enlisted the aid of Oaks in his effort to save his equity. Oaks undertook to help him. Lawhorn did not know Oaks owned an interest in the note secured by) the deed of trust under which the sale was impending. The evidence shows that Oaks, representing respondent and on behalf of respondent, arranged with appellant that respondent might pay $100 and postpone the sale for six months; or, in case the $100 could not be paid before the sale, that appellant would buy in the land and give respondent six months in which to redeem. Oaks reported this to respondent and he returned to his home in Kansas the day before the sale. On the day of the sale Oaks asked appellant if he was going to live up to his agreement. Appellant said he was not. Appellant admits he had a conversation with Oaks, who represented respondent, and agreed to postpone the sale if $100 was paid, but denies that he agreed to buy in the property and permit its redemption within six months. The very candid testimony of Oaks, who seems faithfully to have endeavored to preserve respondent's rights, is corroborated to some extent by Carter, by the testimony of respondent, and by the significant fact that respondent left West Plains...