Marston v. Catterlin , 290 Mo. 185 ( 1921 )

Plaintiff brought an action in the Circuit Court of Bates County, on December 3, 1903, against John M. Catterlin, praying the court to set aside a sale under a deed of trust and to cancel the trustee's deed conveying a tract of about eighty-seven acres in said county to Catterlin, or to allow him to redeem the same, with an accounting for the rents and profits, and for general relief. On the trial of the cause on December 12, 1904, the court found for the defendant. On appeal this court, on February 5, 1912, reversed the judgment and remanded the cause, holding that the property should be awarded to the plaintiff, subject to a certain claim of the defendant for reimbursement, and that the defendant must account for the rents and profits. [Marston v. Catterlin, 239 Mo. 390.]

On June 11, 1912, plaintiff filed an amended petition stating,inter alia, that during the pendency of the action Catterlin had conveyed the land, and that by mesne conveyances the title had vested in one Joseph Hodnett, who was made a co-defendant to the action. The amended petition also prayed the cancellation of said conveyances as fraudulent and without consideration, or, if Hodnett should be held to be a purchaser in good faith, that Catterlin be required to account for the proceeds of the sale of the land and for rents and profits and for general relief. On December 2, 1914, judgment was rendered that plaintiff was entitled to the land, subject to a lien in favor of Hodnett for $348.10 with interest, and that plaintiff was not entitled to the proceeds of the sale of said real estate, from which judgment plaintiff and Hodnett appealed. On February 2, 1917, this court reversed the judgment and remanded the cause with directions to the trial court "to dismiss the bill as to defendant Hodnett, and to proceed with a new trial on the question of an accounting as between the plaintiff and the defendant Catterlin. And to this end either party may, if he so desires, so amend the pleadings as to more clearly draw the issue upon that question." [Marston v. Catterlin, 270 Mo. 5.]

On April 26, 1917, plaintiff filed a second amended petition, alleging, in addition to the averments in the former petitions, the result of the second appeal, that Catterlin (who was made sole defendant) had received from Hodnett over $2000 as the purchase price of the Bates County land and had also received in exchange and as part of the consideration therefor a tract of three and one-half acres in Jackson County, and that he held said last named tract in trust for plaintiff. The petition prayed that Catterlin be required to account for the rents and profits of said eighty-seven acres of land, and for all the proceeds he had received from the sale thereof, and that he be required to convey to plaintiff the said three and one-half acres in Jackson County, and in default thereof that the title to said premises be divested out of defendant and vested in fee in plaintiff (subject to a lien in favor of defendant not necessary to be mentioned here), and for other equitable relief.

On October 12, 1917, the court sustained a motion to strike from the petition all the allegations therein referring to the land in Jackson County, on the ground that it was without the jurisdiction of the court, and for the reason that it appeared from the face of the petition that plaintiff's claim to the land in Jackson County is barred by the Statute of Limitations. On May 8, 1919, Catterlin died, and on May 26, 1919, the cause was revived against his administratrix, Lucy Catterlin. Thereafter, on October 15, 1919, the administratrix filed a demurrer to the amended petition on the ground that it failed to state facts sufficient to constitute a cause of action, and that the cause arose more than five years before plaintiff sued for the proceeds of the sale of the Bates County land. The court sustained the demurrer on the ground that it was barred by the Statute of Limitations, and rendered final judgment for the defendant.

A writ of error was issued by the Kansas City Court of Appeals, and thereafter the cause was transferred to this court for the reason that title to real estate was involved.

On the first appeal we held that plaintiff was entitled to the Bates County land, and that Catterlin must account for the rents and profits. In the meantime Catterlin had conveyed the land and the title had vested in Hodnett. On the second appeal, it was held that Hodnett did not know of the plaintiff's equity at the time he purchased the Bates County land. It was admitted that the statutory notice of lis pendens was not filed prior to its purchase; hence, he did not have constructive notice. It was also held that the petition was sufficient to entitle the plaintiff to an accounting for the proceeds of the sale of the land. The judgment was reversed, and the cause remanded with directions, as heretofore stated.

I. Did the court err in striking from the second amended or supplemental petition the averments as to the three and one-half acres of land in Jackson County? According to these averments, Catterlin received a conveyance to this tract in exchange, in part, for the sale of the Bates County land. ThePrayer for prayer of the petition was that Catterlin beConveyance: required to convey this tract to plaintiff, and forJudgment for general relief. Section 1179, Revised Statute 1919,Accounting. provides that suits for the possession of real estate or whereby the title thereto may be affected . . . shall be brought in the county where such real estate or some part thereof is situated. A judgment requiring Catterlin to convey the tract in question would, therefore, be beyond the jurisdiction of the trial court. [State ex rel. v. Grimm,243 Mo. 667, 673; State ex rel. v. Cave, 272 Mo. 653, 668.] But the mandate of this court required the trial court to take an accounting of all the proceeds Catterlin received from the disposition of the Bates County land. When a court of equity one acquires jurisdiction of a cause, it will retain it to do full and complete justice. The court may give any relief consistent with the allegations, and where the petition contains prayers for specific relief, it may also give relief different from the specific relief sought. Under the prayer for general relief the court had power to take an accounting of the value of the Jackson County tract and to render a judgment therefor. [Holland v. Anderson, 38 Mo. 55; McLure v. Nat. Bank of Commerce,252 Mo. 510, 518 et seq.].

II. The learned trial court also erred in sustaining the demurrer to the second amended petition on the ground that the cause of action set up therein accrued more than five years before such amended petition was filed. This actionLimitations. was commenced in the year 1903. On an appeal from the judgment, this court held, in effect, that Catterlin was a trustee ex maleficio and reversed the judgment and remanded the cause. Meanwhile Catterlin had conveyed the land and the title had vested in Hodnett. An amended petition was filed praying that the title be divested out of Hodnett, or for the proceeds of the sale if he were found to be an innocent purchaser. The Statute of Limitations was not interposed as a defense. The statute does not run pendente lite. The second amended petition does not declare upon a new or different cause of action; it asks for an accounting for the proceeds of the sale of the land. The statute was not available as a defense. [Long v. Long, 141 Mo. 352, 368; Courtney v. Blackwell, 150 Mo. 245, 271.]

Aside from these considerations the mandate of this court on the second appeal in express terms required the trial court to proceed with a new trial on the question of an accounting as between the plaintiff and the defendant Catterlin. The trial court should have proceeded and taken the accounting in obedience to our mandate. It is the law of this case. [Cape Girardeau Thebes Bridge T.R. Co. v. Southern Ill. Mo. Bridge Co.,215 Mo. 286; Citizens National Bank v. Donnell, 195 Mo. 564; Keaton v. Jorndt, 259 Mo. 179.] It is a familiar doctrine that where a defense might have been pleaded, the defendant is concluded by the judgment as to that defense the same as if it had been pleaded and evidence introduced in its support. [Pickel Stone Co. v. Wall, 108 Mo. App. 495.] But this suit was instituted in 1903 and not in 1917.

The judgment is reversed and the cause remanded with directions to the trial court to take an accounting as directed on the second appeal.

All concur.