Robinson v. Field , 342 Mo. 778 ( 1938 )

ON MOTIONS TO MODIFY AND FOR REHEARING. Appellants and respondent have each filed motions to modify and respondent also seeks a rehearing. Respondent says the opinion contravenes decisions holding that recitals of consideration in a deed may be contradicted and explained by parol testimony. [Citing Cave v. Wells, 319 Mo. 930, 5 S.W.2d 636; Hunter v. Hunter, 327 Mo. 817, 39 S.W.2d 359; See v. Mallonee,107 Mo. App. 721, 82 S.W. 557.] [7] The opinion fully recognizes this rule, holding that such evidence was proper and "was sufficient to warrant the finding that the deeds were given as security for payment of attorneys' fees instead of absolute conveyances in fee." It further holds that (although explanation was proper) "plaintiff did not make any explanation to contradict thisamount stated in the deeds." We only say that in the absence of such explanation, these deeds must be considered as recognition that at least this amount was due. Respondent's motions are, therefore, overruled.

[8] Appellants contend that the cause should not be remanded but finally reversed. They contend that, since none of the parties were residents of Clinton County, they could not confer jurisdiction by agreement (or in any manner) upon the Circuit Court of Clinton County to try any matter except title to the real estate because that is all Section 722, Revised Statutes 1929, authorizes and under Section 720, Revised Statutes 1929, other suits must be brought in the county where one of the parties resides. It is, of course, true that the Circuit Court of Clinton County had jurisdiction of the suit as it was commenced because Section 722 authorized such suit (inrem) involving title to the land in Clinton County to be brought there. This suit was in equity and, on plaintiff's equitable mortgage theory, his right to set aside the deed asserted depended upon proof that he owed defendants nothing. Does Section 720 prevent or render void a determination of all matters (inpersonam) between the parties to this suit, involving how much more than the deeds secured or paid (if any) plaintiff owed defendant, even though they both seek to submit such matters? Under Section 720, commencement of suit (in personam) by summons in Clinton County where the plaintiff did not reside could not compel defendants (who did not reside there either) to make personal appearance and try such a case there. Likewise, under Section 720, defendants could not have commenced a suit by summons in Clinton County against plaintiff for fees claimed to be due and compel plaintiff to appear and try that case. However, "statutes fixing venue in the county of defendant's domicile confer a mere personal privilege which may be waived by the party entitled to assert it." [67 C.J. 129, sec. 212.] Here, both parties requested the Circuit Court of Clinton County to determine the amounts due between them. When defendants filed a cross bill or counterclaim seeking affirmative relief of judgment for an additional amount, in a suit which necessarily involved the question of whether or not they had already been paid in full, when plaintiff generally denied the claims made in the cross bill, and when both parties entered into a trial on the merits of all issues, should either thereafter be heard to say that the court was then without such jurisdiction? We think not. It is a settled rule that lack of jurisdiction of the subject matter cannot be waived or conferred by consent; but it is equally well settled that jurisdiction over the person may be waived, and we hold that waiver of venue in a transitory action comes within the latter classification. [Farmers Bank v. St. L. H. Railroad Co., 119 Mo. App. 1, 95 S.W. 286; Tual v. Martin,228 Mo. App. 30, 66 S.W.2d 969; Taylor v. Hurshman (Mo. App.), 35 S.W.2d 377; Markey v. L. M.R. Railroad Co., 185 Mo. 348, 84 S.W. 61; Cook v. Globe Printing Co., 227 Mo. 471, 127 S.W. 332; Kincaid v. Storz, 52 Mo. App. 564; Rider v. Kirk,82 Mo. App. 120; Hockaday v. Gilham, 206 Mo. App. 132, 226 S.W. 991; Winning v. Brown, 340 Mo. 178, 100 S.W.2d 303; Merchants Heat Light Co. v. Clow Sons, 204 U.S. 286, 27 Sup. Ct. 285, 51 L. Ed. 488; 67 C.J. 91-94, secs. 146-161; 67 C.J. 128-132, secs. 210-218; 27 R.C.L. 783, sec. 6.]

Defendants' motion is likewise overruled.