Ennis v. Padgett , 122 Mo. App. 539 ( 1907 )

GOODE, J.

(after stating the facts). — It is.to be observed that the demurrer is-directed against joining a cause, of action ex contractu with one ex delicto in the same petition, not for blending two separate causes of action in one count. If two causes of action are such as the Code allows to be joined in a petition, but requires them to be pleaded in separate counts, the right method. of objecting to the mingling of them in one count is by motion to have the plaintiff elect on which cause he will proceed. [McHugh v. Transit Co., 190 Mo. 85, 94, 88 S. W. 853; Otis v. Bank, 35 Mo. 128.] But separate causes of action of every character cannot be joined in the same petition even in different counts. Section 593 of the Revised Statutes of 1899 enumerates the different causes which may be united, and if causes not properly joinable are set out in one petition, the remedy is by demurrer. [Ederlin v. Judge, 36 Mo. 350; O’Reily v. Diss, 48 Mo. App. 62, 64.] Defendant insists, and the lower court held, that plaintiff’s petition joins a cause of action sounding in contract against Padgett and one ex delicto for conversion against Pence. Nothing in the petition lends any countenance to this interpretation, except that in the prayer judgment is asked against “the defendants,” which would include Pence as well as Padgett. But the prayer for judgment does not indicate that an action in torfc was intended to be stated; for it alleges the defendants are indebted to plaintiff, which they would be only by an assumpsit, express or implied. The use of the 'words “the defendants” in the prayer ought not to control the determination of this question. The pleading is plainly in the nature of a bill in equity to set aside the alleged fraudulent satisfaction of the deed of trust given to secure the note, reinstate the lien of said deed and obtain judgment on the note against, the maker. Mrs. Padgett was made a party because she was a party to the deed of trust and Pence because he participated in procuring the fraudulent entry of satisfaction of it and was pretending to own the note. In our opinion but one cause of action is attempted to be stated.

The second ground on which the demurrer was sustained is that no facts are alleged to constitute fraud. This was one of the reasons assigned in the demurrer; another being that no facts which would amount to fraud Avere alleged in connection with the procuring of the note from Hickman, the deceased, by Padgett and Pence. No doubt when fraud is the gist of the action, a general allegation of fraudulent conduct on the part of a defendant will not suffice to let in evidence of the representations or acts supposed to have been fraudulent. The facts themselves must be alleged. [Smith v. Sime, 77 Mo. 269; Clough v. Holden, 115 Mo. 336, 21 S. W. 1071; Newman v Trust Co., 189 Mo. 423, 444, 88 S. W. 6.] But fraud in procuring this noté from the deceased is not of the essence of the case stated. The broad allegations of fraud in that connection may be struck from the petition and still leave the case intact. This will be seen by reading the petition without those allegations; which we have italicized in order that their relative importance as compared with the other averments may be apprehended readily. It is charged in two paragraphs that the note and deed of trust were in full force and effect .and the property of Hickman at the time of his death. Omitting the charges of fraud in procuring the note, the petition states that about July 1, 1904, Padgett and Pence obtained possession of it and on July 8, 1904, after Hickman’s death, Pence signed a pretended release on the margin of the record of the deed of trust, whereby he acknowledged satisfaction in full, presenting a note to the recorder for cancellation, which he claimed was the Hickman note; that defendants falsely, and for the purpose of cheating the estate of Hickman, pretended Pence was the owner of the note described in the deed of trust, holding the same under a pretended assignment from Hickman. It is further averred that the note was not the property of Pence, had not been legally and properly assigned to him; that if a pretended assignment was made, it was without consideration and void, and that the note never was assigned for value and delivered to Pence by Hickman. If the facts alleging fraud in procuring the entry of satisfaction of the deed of trust are of the essence of the case, they are stated with particularity. There are more than general allegations of fraud in connection with that transaction. The averments are that Pence fraudulently represented himself to be the ow;ner of the note, showed a note to the recorder purporting to be the Hickman note and by his false representations obtained an entry of satisfaction on the record and cancellation of the note. The gist of the case is that the note and deed of trust were in force and the property of Hickman when he died and as the ownership never had passed to Pence, either by gift or for value, the securities belonged to Hickman’s estate and the release obtained by Pence ought to be set aside as invalid; that is to say, if the right of no third party will be impaired. Now, the averments that the note and the deed of trust belonged to Hickman at his death and that the note was not the property of Pence, and other similar allegations, are broad enough to show Pence had no right to have the deed of trust marked satisfied on the record, or to retain the securities. They show also that Padgett owes the note to Hickman’s estate. Evidence to sustain those allegations would entitle plaintiff to relief. We think a perfectly good cause of action was stated by the petition.

The judgment will be reversed and the cause remanded with direction to the court below to set aside the order sustaining the demurrer, overrule the same and permit defendant to answer.

All concur.