Stoepler v. Silberberg
| Decision Date | 18 May 1909 |
| Citation | 119 S.W. 418,220 Mo. 258 |
| Parties | ELIZABETH STOEPLER et al., Plaintiffs in Error, v. MORITZ SILBERBERG et al |
| Court | Missouri Supreme Court |
Error to St. Charles Circuit Court. -- Hon. Jas. D. Barnett, Judge.
Affirmed.
T. F McDearmon and Brownrigg, O'Brien & Mason for plaintiffs in error.
(1) In order that a deed may operate to convey an after-acquired title by inurement, it must purport to convey an indefeasible estate in fee simple absolute. Bogy v. Shoab, 13 Mo 380; Valle v. Clemens, 18 Mo. 486; Rector v Waugh, 17 Mo. 27; Gibson v. Chouteau, 39 Mo. 566; Brawford v. Wolfe, 103 Mo. 391; Ford v. Unity Church Society, 120 Mo. 508; Wilson v. Fisher, 172 Mo. 10; Devlin on Deeds (2 Ed.), sec. 947. (2) A deed, the granting part of which conveys an estate less than a fee, will not be enlarged into a fee on account of the fact that it contains a clause of general warranty. Rector v. Waugh, 17 Mo. 27; Davidson v. Manson, 146 Mo. 608; Pelletreau v. Jackson, 11 Wend. 110; Hamrick v. Patrick, 119 U.S. 175; Adams v. Ross, 30 N. J. L. 509; Wright v. Shaw, 5 Cush. 56; Trull v. Eastman, 3 Met. 123; 2 Coke, Lit. 385 b. (g); Rawle on Covenants of Title (3 Ed.), 393; 3 Washburn on Real Property (6 Ed.), sec. 1934; Devlin on Deeds (2 Ed.), secs. 931, 950.
C. & C. J. Daudt and L. H. Breker for defendants in error.
(1) Under the Homestead Act of 1865 a homestead could only be claimed in land acquired by deed. Schindler v. Givens, 63 Mo. 394; Lincoln v. Rowe, 64 Mo. 138; O'Shea v. Payne, 81 Mo. 518; Loring v. Groomer, 142 Mo. 2; Spratt v. Early, 169 Mo. 369; Clark v. Thias, 173 Mo. 628; Thompson on Homestead, sec. 231. (2) The devise to Louise Stoepler under the will of her husband, Bernard Stoepler, was greater in value than the estate she could have taken in the property in suit under the homestead law. (a) She was, therefore, put to her election, as to whether she would take under the will or under the homestead law. She did elect to take the devise under the will and hence was barred of the homestead. Daudt v. Musick, 9 Mo.App. 174; Davidson v. Davis, 86 Mo. 440; Kaes v. Gross, 92 Mo. 648; Burgess v. Bowles, 99 Mo. 544; Schorr v. Etling, 124 Mo. 42; Ball v. Ball, 165 Mo. 312. (b) The right of the widow to make an election was personal to her and not transmissible by descent to her heirs or legal representatives, and plaintiffs as her representatives claiming as heirs of Frederick Stoepler, who was her sole surviving heir, cannot withdraw her acceptance of the provisions made for her by her husband's will and now claim a homestead. Welch v. Anderson, 28 Mo. 299; Davidson v. Davis, 86 Mo. 444; Schorr v. Etling, 124 Mo. 47; Ball v. Ball, 165 Mo. 326. (3) The deed from Frederick Stoepler to Moritz Silberberg was a general warranty deed, and by its recitals of ownership and covenants of seizin and warranty Frederick Stoepler was, and now plaintiff as his heirs are, estopped to deny his ownership of the property at the time of the execution of the deed and any title descending to him from his mother after its execution immediately inured and passed to defendant Silberberg. Bogy v. Shoab, 13 Mo. 372; Gibson v. Chouteau, 39 Mo. 568; Lajoye v. Primm, 3 Mo. 538; Clamorgan v. Greene, 32 Mo. 285; Tyler v. Hall, 106 Mo. 319; 11 Am. and Eng. Ency. Law (2 Ed.), 400; 24 Ib. 57, 62. (4) The cause having been tried before the court without instructions, the appellate court cannot tell on what theory the cause was tried in the circuit court, and will not weigh the evidence and review the finding below, but must presume the trial court made a proper application of the law to the facts. Weilandy v. Lemuel, 47 Mo. 322; Miller v. Breneke, 83 Mo. 163; Altum v. Arnold, 27 Mo. 264; Conran v. Sellew, 28 Mo. 320; Easley v. Elliot, 43 Mo. 289; Wilson v. Railroad, 46 Mo. 36; Harrison v. Bartlett, 51 Mo. 170; Cunningham v. Snow, 82 Mo. 587; Riffe v. Railroad, 72 Mo.App. 222; Rice, Stix & Co. v. Harper, 74 Mo.App. 383; Bray v. Kremp, 113 Mo. 552; Mauch v. Hornback, 109 Mo.App. 624; Clyburn v. McLaughlin, 106 Mo. 521; Sieferer v. St. Louis, 141 Mo. 586; Gardner v. Robertson, 208 Mo. 612; Martin v. Trail, 142 Mo. 100.
This is a writ of error to reverse a judgment of the circuit court of St. Charles county, in an action of ejectment brought by the plaintiffs as the widow and heirs at law of Frederick Stoepler, deceased, against defendants, for real estate in the city of St. Charles, described as "Block 177 of the said city, fronting seventy-five feet more or less on Morgan street and extending back northwardly the same width to the center of the square, and bounded on the north by the lot of Henry Vossick, on the east by Five and a Half street, south by Morgan street and west by the lot of Adolph Kohlmeier; and is part of what is know as Pallardy's Addition to the City of St. Charles, of Boon Ten of the St. Charles Commons."
Ouster was laid as of January 7, 1903. The petition was in the statutory form and damages alleged to be $ 5,000, and monthly rents and profits eighty dollars.
The defendants Bye Turner and John Hickey filed separate answers, denying generally all the allegations of the petition and each for himself alleging his possession of a part of said premises and denying possession of the other portion thereof.
The defendant Moritz Silberberg, for his separate answer, denied each and every allegation of the petition and then alleged that he was not in the actual possession of the whole or any part of the premises, but that he had rented the same to the defendants, John Hickey and Bye Turner; the east half of said premises to the said Hickey, and the west half to the said Bye Turner. At the commencement of this suit, the said parties were in the actual possession each of the part rented to him. For further answer the defendant Silberberg states that on the day of -- -- --, 1866, one Bernard Stoepler, under whom defendant as well as plaintiffs claim title to the real estate described in the petition, died the owner in fee of said real estate. That said Bernard Stoepler left a last will which was duly probated in the probate court of St. Charles county on the 14th of November, 1867, in and by which in said last will he devised said real estate to his widow Louise Stoepler, for and during her natural life and the remainder after her death to his children, August, Louise, Frederick and Mary. That on or about the 19th day of December, 1883, this defendant, while residing in St. Louis, was engaged in the grocery business and owned a valuable stock of groceries and merchandise of the value of twenty-four hundred dollars; that at said last-mentioned date, Frederick Stoepler, one of the children of Bernard Stoepler, deceased, and said widow, Louise, whom this defendant had prior to that date married, represented to this defendant that he the said Frederick Stoepler had acquired all the right, title and interest of his aforementioned brothers and sisters, and that he was the owner in fee of said real estate subject only to the life estate of the said widow, Louise, devised to her by the last will of her deceased husband. Said Frederick Stoepler and said widow Louise requested this defendant to exchange his said grocery business and stock of merchandise in St. Louis for said real estate; that relying upon said representation of the said Frederick Stoepler and the said widow, Louise, and believing that the said Frederick Stoepler was the owner of said real estate, subject only to the life estate of the said widow Louise, defendant consented to make the exchange so requested, and sold and delivered said grocery business and merchandise to the said Frederick, and in consideration thereof said Frederick made, executed and delivered to this defendant his deed conveying the said real estate in the petition described. That said Louise died on the 13th day of February, 1894, and said Frederick Stoepler died subsequently thereto. That plaintiffs claim title to said real estate by descent of said widow Louise, and as heirs of said Frederick. Defendant states that by reason of the representations of the said Frederick and the said Louise, the plaintiffs as their heirs are estopped from asserting any claim in said real estate, and from denying that the fee simple title to the same was owned by and vested in said Frederick at the time of his conveyance to this defendant. Defendant further alleged that after the conveyance to him of this land, he entered into and has ever since been in open, absolute, adverse possession of the same, and has made lasting and valuable improvements thereon, and paid out large sums of money for repairs and insurance and taxes, to the amount of three thousand dollars, all with the knowledge and consent of the said Frederick and the said widow Louise and their heirs, who stood by while defendant was making said improvements and repairs and laying out said sums of money, without in any way disclosing to this defendant, his, her or their claim to said real estate.
For further answer defendant stated that the said Frederick by his deed covenanted for himself and his heirs, to and with this defendant, his heirs and assigns to warrant and defend the title of said real estate to this defendant against the claim of every person whomsoever, and that he the said Frederick Stoepler at the time of the execution of said deed was seized of an indefeasible title in fee simple in said real estate; that said real estate was free from any incumbrance done or suffered by him or any person under whom he claimed and that he and his heirs would make every assurance of said real estate to defendant, his heirs and assigns. And defendant avers that the plaintiffs are the heirs of said...
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