Mann v. Doerr

• Decision Date: 01 July 1909
• Citation: 121 S.W. 86,222 Mo. 1
• Parties: MANN v. DOERR et al. (two cases).
• Court: Missouri Supreme Court

121 S.W. 86

222 Mo. 1

MANN v. DOERR et al. (two cases).

Supreme Court of Missouri, Division No. 1.

July 1, 1909.

1. JUDGMENT (§ 203) — MORE THAN ONE JUDGMENT IN SAME CASE.

Under Rev. St. 1899, § 694 (Ann. St. 1906, p. 703), providing that the judgment on each separate finding shall await the trial of all the issues, etc., there can only be one final judgment, though the petition contains several counts, some at law and some in equity, and though separate trials are had thereon at the same or different terms of court.

2. APPEAL AND ERROR (§ 882) — ESTOPPEL TO ALLEGE ERROR — ENTRY OF JUDGMENT.

A plaintiff procuring the entry of a judgment final in form, granting relief as prayed for

in the first count of the petition, stating a cause of action to quiet title under Rev. St. 1899, § 650 (Ann. St. 1906, p. 667), cannot on appeal urge that the judgment is premature because entered before the trial of the second count alleging an action in ejectment.

3. QUIETING TITLE (§ 1) — SCOPE OF REMEDY.

An action to quiet title under Rev. St. 1899, § 650 (Ann. St. 1906, p. 667), lies irrespective of the possession of plaintiff or defendant, and the section does not contemplate a judgment for possession.

4. TRIAL (§ 3) — SEPARATE TRIALS — DIFFERENT CAUSES OF ACTION.

Where, to avoid a multiplicity of suits, the petition as authorized by Rev. St. 1899, § 593 (Ann. St. 1906, p. 619), unites a count to quiet title under section 650 with a count in ejectment, the court may grant separate trials.

5. QUIETING TITLE (§ 30) — PARTIES.

A tenant in possession under a written lease is a proper party defendant in an action to quiet title under Rev. St. 1899, § 650 (Ann. St. 1906, p. 667), brought against the landlord claiming title.

6. ACTION (§ 50) — JOINDER OF CAUSES OF ACTION — STATUTES.

Under Rev. St. 1899, § 593 (Ann. St. 1906, p. 619), permitting the joinder of causes of action affecting all the parties to the action, there must be interests in common in the subject-matter of the litigation before a petition can unite parties as defendants.

7. PARTIES (§ 92) — MISJOINDER OF PARTIES.

Where the petition, which states in one count a cause of action to quiet title under Rev. St. 1899, § 650 (Ann. St. 1906, p. 667), and in another a cause of action in ejectment, did not show that the defendant in possession was the tenant of the other defendant, the misjoinder of parties was properly pleaded in the answer.

8. EJECTMENT (§ 1) — NATURE OF ACTION.

Under Rev. St. 1899, §§ 3056, 3058, 3060 (Ann. St. 1906; pp. 1756, 1758, 1759), providing that ejectment shall be brought against the person in possession, etc., ejectment is a possessory action.

9. EJECTMENT (§ 45) — PARTIES — DEFENDANTS.

Rev. St. 1899, § 3057 (Ann. St. 1906, p. 1757), providing that in ejectment the person through whom defendant claims title may on motion be made a codefendant, is but declaratory of the common law, and extends to a landlord the option to come in and defend ejectment against his tenant; but the landlord whose tenant is in possession is not a necessary or proper party at the instance of plaintiff.

10. APPEAL AND ERROR (§ 1027) — IMMATERIAL ERRORS.

Under Rev. St. 1899, §§ 659, 865 (Ann. St. 1906, pp. 679, 812), requiring the court to disregard errors not affecting the substantial rights of the party, etc., an error, to be reversible, must originally affect the merits, and it must not have been waived or cured.

11. EJECTMENT (§ 49) — PARTIES — LANDLORD OF TENANT IN POSSESSION.

A landlord, who purposely takes on himself the burden of supporting his tenant's possession, attacked by ejectment, thereby makes that possession his own and makes himself responsible if the possession is adjudged wrongful.

12. APPEAL AND ERROR (§ 1036) — HARMLESS ERROR — MISJOINDER OF PARTIES.

A petition stated in one count a cause of action to quiet title and in another count a cause of action in ejectment. Defendants were the tenant in possession and his landlord. The landlord answered to the merits and sought to defend the possession of the tenant. Held, that the misjoinder of parties defendant in the action because the landlord was not a proper or necessary party to the action of ejectment was not ground for reversal of the judgment granting plaintiff relief in both causes of action.

13. APPEAL AND ERROR (§ 437) — EFFECT — JUDGMENT AS EVIDENCE.

A judgment adjudging title in plaintiff, rendered under the first count of his petition, stating a cause of action to quiet title under Rev. St. 1899, § 650 (Ann. St. 1906, p. 667), is admissible in evidence on the trial of the second count of the petition stating a cause of action in ejectment, though an appeal from the judgment was pending, and though the judgment was suspended by a supersedeas bond.

14. EJECTMENT (§ 148) — IMPROVEMENTS BY DEFENDANT — RECOVERY.

Rev. St. 1899, § 3072 et seq. (Ann. St. 1906, p. 1766), authorizing an unsuccessful defendant in ejectment to recover compensation for the improvements, contemplate a new proceeding to be commenced by defendant before ouster by writ of possession, and an unsuccessful defendant is not entitled, as a matter of law, to have improvements considered in the ejectment suit proper, unless he held possession or occupancy by a claim of title through plaintiff.

Appeal from Circuit Court, Jackson County; Herman Brumback, Judge.

Action by Helen M. Mann against Christian Doerr and another. From a judgment for plaintiff, defendants appeal. Affirmed.

C. W. Chase and Paul J. Byrd, for appellants. Meservey & German, for appellee.

LAMM, P. J.

Two cases were brought here with above title, each an appeal by defendants from a judgment in favor of plaintiff, one from a judgment on the first count of a petition, the other on a second. The first count is under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667). In that plaintiff charges she is the owner of 10 acres of land described by metes and bounds lying in Jackson county (the description is complicated and is omitted); that defendants and each of them are claiming some title, interest, and estate in the property, etc. Wherefore plaintiff prayed the court to ascertain, determine, and adjudge title, etc., as provided in section 650. The second count is in common form in ejectment, laying ouster as of October 1, 1902, and putting monthly rents at $25, and damages at $675.

To this petition defendant Doerr filed separate answers by counts. To the first count he answered, in substance: That one Morris Mann was the owner of the property; that while such owner on a certain date in January, 1896, he was heavily indebted and unable to pay his debts; that for the sole purpose of defrauding his then creditors he executed a warranty deed conveying the property to plaintiff, then his wife, who was a party to the fraud; that the deed was at once put of record, was without consideration in fact, and expressed a consideration many times the value of the property; that, as part of the fraudulent scheme, plaintiff and her husband, Morris, at once executed a sham deed of trust to a trustee for defendant Christian Doerr, beneficiary, pretending to secure a pretended note due Doerr for $3,000; that there was no consideration for said note or deed of trust; that the latter was also put of record, and defendant Doerr had no knowledge of the execution or record of said sham security or simulated note; that plaintiff, without the knowledge of her husband, subsequently possessed herself of said note and now has the same; that in 1901 a suit was commenced againt Morris Mann by one Fish, who was a creditor of his prior to the execution of the warranty deed to Helen; that such proceedings were taken in that case as resulted in a judgment in favor of Fish, in July, 1902, in the Jackson circuit court; that an execution was issued on the Fish judgment and levied upon the property in dispute as to that of Morris Mann; that defendant Doerr purchased at the execution sale on the 6th day of September, 1902, in good faith for a valuable consideration of $600, with no knowledge of the warranty deed from Morris to Helen or of the sham trust deed in his own favor; that at that time, and at all times subsequent to said fraudulent conveyance, Morris Mann was in possession through tenants and receiving rent; that presently, after the land was knocked down to him at sheriff's sale on the Fish execution and judgment and a sheriff's deed executed, the defendant took possession, and has since received the rents and is now the owner and entitled to possession; that there is a misjoinder of parties defendant, in that defendant Kahl is merely a tenant in possession, claims no title or right other than as tenant, and is not a necessary party. This answer was sworn to by Christian Doerr.

In his separate answer to the second count, defendant repleads the averments of his answer to the first count. He then avers that, while he is the owner of the title, he is not in possession of the premises, but that his codefendant, Kahl, is in actual possession, and therefore there is a misjoinder of parties defendant. He next avers that he was a purchaser in good faith and for a valuable consideration at the execution sale under the Fish judgment, and that since his purchase he had made valuable improvements, viz., set out a young orchard of 150 fruit trees, improved and repaired the house and barn inside and out, constructed a cistern and sunk a well, built chicken houses, etc., to the value of $400, and he prays that, if plaintiff recover possession, then that he may recover the cost of his improvements and the purchase price by him expended. The answer to the second count is also sworn to by him. The defendant Kahl disavows any interest in the real estate by his answer to the first count, and all knowledge as to the merits of the controversy, says he is a mere tenant of Doerr, and pleads a misjoinder of parties defendant as to that count. As to the second, he denies each and every...