Bobb v. Woodward

Eagg, Judge,

delivered the opinion of the court.

The petition filed in this case contains in its statement of the cause of action two general grounds for relief, blended together in the same count.

The plaintiff below' claimed title to certain real estate in the-city of St. Louis, acquired by purchase at sheriff’s sale under an execution against E. K. Woodward. It was charged that Woodward was then in possession of the property, holding and claiming it as his own. It proceeds to set out with great minuteness a statement of facts tending to show a combination and confederation on the part of Woodward and his brother-in-law, Smith, to cheat, hinder, delay, and defraud the creditors of the former by making a fraudulent sale and transfer of all his property, real and personal. It is alleged that' in pursuance of this fraudulent purpose a pretended sale and transfer of a stock of books worth twenty thousand dollars ($20,000), and the book accounts, notes, etc., amounting to fifteen thousand dollars ($15,000), was made to Smith in consideration of the sum of eleven thousand three hundred and sixty dollars ($11,860), no part of which was ever actually paid ; that the business was carried on afterward in the name of an agent, under the superintendence and control of Woodward, and for his sole use and benefit; that the real estate mentioned had also been conveyed to Smith, in fraud of the rights of creditors, so as to enable Woodward t"o use and occupy the same *487 for his own benefit, he being at the time wholly insolvent; that previous to these transactions two deeds of trust covering the same property had been executed by Woodward, and that Smith had taken up the notes, which were thereby secured, with means arising from the business carried on as above stated; that these deeds remained unsatisfied upon the records of the county, notwithstanding the debts were thus fully paid off and discharged, and with the conveyance to Smith constituted a cloud on plaintiff’s title.

Woodward, together with the trustees mentioned in the deeds, and also Smith, were made parties defendant, and the court was asked to make a decree declaring the deed of conveyance to Smith to be null, fraudulent, and void, as to the plaintiff, and that all' of the right, title, and interest ir. the same be vested in him; that the two deeds of trust be decreed satisfied and paid; and further, that ci the court decree the plaintiff entitled to the possession of the two lots aforesaid, and that a writ issue out of the clerk’s office of this court, directed to the sheriff, for the possession thereof.”

The three first-named defendants were personally served, and appeared and pleaded to the action by way of demurrer. Smith, being a non-resident, was notified by publication, and failing to appéar at the proper time a judgment by default was taken against him. This, at the subsequent term of the court, was made final, and the cause dismissed as to the other defendants. The demurrers on the part of these defendants were all sustained, but no amendment of the petition was actually made, and no judgment entered up for them. On the day of the rendering of the final decree in the cause, Smith, appearing by attorney for that purpose alone, moved in arrest of judgment, and afterward moved to set aside the same for irregularity. Both motions being overruled, an appeal has been duly prosecuted to this court.

It is admitted that under our system of practice several causes of action, where they come within the classes designated by the statute, may be united in the same petition. Hence, a petition embracing more than one cause of action, some of which (under the former practice of this State) would have been denominated *488 legal and others equitable, will not be held bad upon démurrer, where each with the relief sought for is separately stated. In such case, however, it has been adjudged by this court that they cannot be blended in the same trial; the plaintiff may be compelled upon motion to elect on which cause of action he will procéed. (Mooney v. Kennett, 19 Mo. 551 ; Janney v. Spedden, 38 Mo. 395 ; Peyton v. Rose, 41 Mo. 257 .)

If it is assumed in this case that the principal object sought to be accomplished by the plaintiff was to recover the possession of the real estate in question, then it is manifest that a proceeding in the nature of a bill in equity is not the proper remedy. An adequate remedy at law for that purpose has been provided in the action of ejectment. (See the authorities above cited.)

The plaintiff claimed the legal title by virtue of the sheriff’s deed, which, if valid in law, was sufficient to convey all the title and interest of Woodward; and any prior conveyance that should be interposed to defeat his recovery in such an action could be attacked for fraud. The interposition of a court of equity would not be absolutely necessary to protect him against it. So far as the recovery of the possession of the property itself is concerned, the petition fails to set out the necessary averments to constitute it an action of ejectment. It was an effort to recover possession of real estate by a bill in equity, which cannot be permitted. On the other hand, if it is claimed that it was intended to embrace a statement which would have authorized a trial, as in an action of ejectment, it is fatally defective in blending the different causes of action in the same count.

So much for the question of pleading presented by the record.

We think the court erred in not giving judgment for the defendants, Woodward, Curtis, and Whittelsey, upon the issue joined in their several demurrers. The plaintiff failed to amend his petition after it had been adjudged insufficient as to them. They were no longer to be regarded as parties to the proceeding, but were entitled to a final judgment and discharge. That portion of the petition asking a decree for the possession of the property seems to have been abandoned, and a final decree taken against Smith alone, covering not only the conveyance from Woodward to him, *489 but also the deeds of trust. It then concludes by dismissing the cause as to the other defendants, with a judgment in their favor for costs. This is certainly most extraordinary'in every point of view. It is not deemed necessary to point out the errors of such a proceeding; they are sufficiently apparent upon a simple statement of the case.

' The defendant, Smith, being a non-resident, an attempt was made to notify him of the commencement of the suit by publication. The requirements of the statute in such cases must in all respects be substantially complied with to make the notice sufficient. A notice which falls short in any essential particular of apprising the defendant of the object and general nature of the suit commenced will not be sufficient do authorize a judgment against him. In the case of Janney v. Spedden, 38 Mo. 395 , the question was as to the validity of a judgment rendered against a non-resident upon constructive notice. The order of publication set out correctly the object of the suit; but the plaintiff, in taking his final judgment, proceeded as upon an amended petition, and it was entered for something wholly different from that stated in the notice.

This judgment was held to be null and void. It appears from the record that the notice to Smith informed him of the commencement of the suit, and that its object was “ to set aside” the deed from Woodward to him for the property in question. There is no general statement of the grounds upon which this decree was prayed for. It excludes the idea that any other relief was sought for by the plaintiff. The court could not assume that this was the only matter that materially affected the defendant’s rights and interests in the premises. The notice wras good, enough as far as it went; but the true meaning of the statute in such cases is that it shall go to the extent of a substantial statement of all the objects of the suit. This was not done in the present case, and the judgment rendered upon it must be held to be erroneous. No such appearance was entered for Smith at any stage of the proceedings as amounted to a waiver of the defects contained in the notice.

The other judges concurring,

the judgment will be reversed and the cause remanded.