McCray v. Lowry

Ellison, J. From the statement in this cause it will be noticed that the first petition alleged plaintiff to be the owner of a note of one thousand dollars, by assignment from defendant, and that defendant, without the knowledge or consent of plaintiff, fraudulently released the deed of trust securing thé same ; the prayer being to cancel this release. A trial seems to have been had on'this petition, the court making a finding and rendering a decree; finding that the complaint was not true; that the release, instead of being made fraudulently and without authority,, was entered by the express direction of plaintiff ; that,, notwithstanding this, the note which defendant surrendered to Wright when he entered satisfaction, was plaintiff’s, and that plaintiff had a right to recover the amount thereof from defendant, less what defendant paid the Farmers Bank on plaintiff’s debt to the bank,, in order to get possession of the note, and any other sum defendant might owe plaintiff. In other words, the court in effect found that notwithstanding the note was. properly surrendered, and the satisfaction of the trust deed was properly made, yet, as it was done to relieve defendant’s property, the court finding that plaintiff had no interest in the purchase thereof, defendant owed plaintiff the amount of the note less plaintiff’s indebtedness to defendant, and that this should be charged as a -lien against the property so released. There is no evidence upon which to base this decree. ■There is no evidence from either side, tending to show there was any agreement between the parties to the ef [258] feet that if plaintiff would give up his note and permit satisfaction of the deed of trust to be entered, he should have a lien on the property covered by the deed of trust for the amount of the note less what he might owe defendant. Neither is there anything to be found in the pleadings, origiual or amended, looking to such end, except the balance is asked to be charged as a lien, in the amended petition, but no facts are stated justifying such relief. The amendment still holds forth the idea of fraud in obtaining the note and entering satisfaction, when the fact is, it was done at plaintiff’s instigation. Plaintiff testifies in harmony with his original petition, to the effect that the note was fraudulently obtained and the satisfaction fraudulently entered. Defendant and Wright each testify that it was done by his direction, and no one intimates that he was to have a lien on the property released. The facts being the reverse of the idea that he was to have a lien, we find it impossible to sustain the decree. We are unable to see how the amended petition aids plaintiff’s case ; there is still no pleading or evidence covering the relief obtained. II. But it is contended the decree is justifiable under the prayer for general relief, which is a part of the prayer of the bill in addition to the specific relief of cancellation of the release. The relief granted under a prayer for general relief must be such as is agreeable to the case made by the bill. McNair v. Biddle, 8 Mo. 257 ; Story’s Eq. Pleading, sect. 40. This learned author adds (sect. 42), that “ when the prayer for general relief is sufficient, the special relief prayed at the bar must essentially depend upon the proper frame and structure of the bill: for the court will grant such relief only as the ca,se stated will justify; and will not, ordinarily, be so indulgent as to permit a bill framed for one purpose to answer another', [259] especially if the defendant may be surprised or prejudiced thereby.” In this case the great preponderance of the evidence, the facts found by the court, and the relief decreed, are in the face of the bill. The judgment is reversed, and the bill is dismissed. Philips, P. J., concurring ; Hall, J., absent.