Peters v. Schachner

• Decision Date: 04 February 1926
• Docket Number: No. 25016.,25016.
• Citation: 280 S.W. 424
• Parties: PETERS et al. v. SCHACHNER et al.
• Court: Missouri Supreme Court

280 S.W. 424

PETERS et al. v. SCHACHNER et al.

No. 25016.

Supreme Court of Missouri, in Banc.

February 4, 1926.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

Action by Christ Peters and others against Ricka Peters and others. Judgment for plaintiffs and certain defendants appeal. Affirmed.

Earl M. Pirkey and Kenneth Teasdale, both of St. Louis, for appellants.

Louis J. Grossman, of Belleville, Ill., and John P. Griffin, of St. Louis, for respondents.

SEDDON, C.

This action was originally one in partition, brought by plaintiffs, who are collateral heirs of Sophie Schachner, who died intestate on November 3, 1921. The administrator of her estate joins as a party plaintiff in the bringing of the suit. Two of the defendants, Ricka Peters and Louis Peters, are also collateral heirs of Sophie Schachner and, being nonresidents of the state of Missouri, service was had on them by publication. The defendants and appellants Elizabeth M. Schachner, Marie M. Schachner, Louise B. Rosemeier, and John Henry Schachner are devisees of the real property involved, under and by virtue of the last will and testament of John P. Schachner, deceased, husband of said Sophie Schachner, who died testate on December 3, 1921, exactly one month after the death of his wife. His last will and testament was subscribed by him and properly attested on November 25, 1921, a few days before his death, and was duly probated in the probate court of the city of St. Louis. The remaining defendant and appellant, Edward H. Rosemeier, is the duly appointed and qualified executor of the estate of said John P. Schachner.

The petition is in the usual form, alleging that John P. Schachner and Sophie Schachner were husband and wife, and that no children were born of said marriage; that they were seized in fee simple as tenants in common of the described real property, located in the city of St. Louis; that Sophie Schachner died intestate on November 3, 1921, and that John P. Schachner died testate on December 3, 1921; that the estates of the respective deceased persons are in process of administration; and that the personal and other properties of the respective estates are not sufficient to pay the costs of administration and the claims which have been, or may be, filed against said estates. The petition alleges the undivided interests of the respective parties, plaintiffs and defendants, in and to the real estate described, which consists of a three-story brick building, divided into six flats or apartments, in the city of St. Louis, and that it is of such character that it cannot be partitioned in kind without great prejudice to the parties in interest, and prays that the interests of the respective parties may be adjudged and determined and that the property be ordered sold and the proceeds divided among the parties according to their respective interests after the estates of John P. Schachner and Sophie Schachner have been finally settled and all claims against said estates have been fully discharged.

The defendants Ricka Peters and Louis Peters filed no answer. The remaining defendants filed answer, admitting the respective dates of death of said Sophie and John P. Schachner; that no children were born of their marriage; and that defendants are devisees under the last will and testament of John P. Schachner, but denying all other allegations. The answer further alleges:

"That during her lifetime said Sophie Schachner and John P. Schachner were tenants by the entirety of the property described in the petition, and on her death said John P. Schachner became the sole owner thereof, and at the time of his death he was the sole owner, and by his last will and testament these (answering) defendants were devised said property, and they are the sole owners thereof; of; * * * that during her lifetime said Sophie Schachner and said John P. Schachner bought at partition sale the property involved in this suit, and no other transfer has since been made, and prior to said purchase it was agreed between them that they would buy it as tenants by the entirety, but the deed made out by the sheriff, while it makes them tenants by the entirety, is not clear in its language as it should be and uses the words `tenants in common,' which tend to mislead and cloud the title, and said words were inserted in said deed by the mistake of the sheriff, and said Sophie Schachner and John P. Schachner, owing to the fact that they were uneducated and unlearned, supposed that said deed was regular and clear in form as a deed making them tenants by the entirety. Wherefore defendants ask that plaintiffs' petition be dismissed and that the court will reform said deed by striking out the words therein `in common' and substituting therefor the words `by the entirety.'"

The reply denies generally the new matter of the answer.

Plaintiffs, at the trial, introduced proof of the relationship of the parties, respectively, to said Sophie Schachner and John P. Schachner, and their respective interests in the property, together with the sheriff's deed, dated November 11, 1898, duly executed and acknowledged by Henry Troll, sheriff of the city of St. Louis, and recorded on November 21, 1898, in the office of the recorder of deeds of said city, under which deed said John P. Schachner and Sophie Schachner acquired title to said land. The deed is in the usual form, reciting an order of sale in certain partition proceedings pending in the circuit court of the city of St. Louis, whereby said sheriff, in obedience to said order, caused the real estate to be advertised for sale according to law and to be sold at public sale to the highest bidder on November 2, 1898, "at which said time and place John Schachner and Sophie Schachner, his wife, became and were the highest bidders for said real estate at the price and sum of $3,130, and the said real estate described was then and there stricken off and sold to the said John Schachner and Sophie Schachner, his wife, for said sum of $3,130"; that said sheriff made report of said sale to the circuit court of the city of St. Louis on November 4, 1898, which report was approved and confirmed by said court on November 11, 1898, and an order was thereupon made by said court ordering and directing the said sheriff to make and execute to the purchasers a good and sufficient deed for the said real estate. The operative or granting clause of the deed is as follows:

"Now, therefore, know ye, that Henry Troll, sheriff as aforesaid, in consideration of the premises and of the said sum of $3,130 to me in hand paid (according to the terms in said order mentioned) by the said John Schachner and Sophie Schachner, his wife, the receipt whereof I do hereby acknowledge, and by virtue of the power and authority in me vested by law, I do hereby bargain, sell, transfer and convey to the said John Schachner and Sophie Schachner, his wife, as tenants in common, and to their heirs and assigns forever all the right, title, interest, claim, estate and property of them, the said parties to the suit hereinbefore named, of, in and to the said real estate, hereinbefore described, together with all the rights, privileges and appurtenances thereunto belonging, or in any way appertaining." (Italics ours.)

The deed contains no habendum clause. Thereupon the last will and testament of John Peter Schachner, together with the probate court records, showing due proof and probating of said will, were introduced in evidence. Defendant Louise B. Rosemeier testified for plaintiffs that she is the daughter of defendant Elizabeth M. Schachner and that the defendants Marie M. Schachner and John Henry Schachner are the sister and brother of witness; that her father was a cousin of said John P. Schachner; and that witness, her mother, brother, and sister are the four devisees of the land in question named in the will of said John P. Schachner, deceased. On cross-examination of the witness by appellants' counsel, the following occurred.

"Q. Did you, after the year 1911, between that time and the time Mr. Schachner died, ever hear him and Sophie Schachner, his wife, discuss the ownership of this property?

"Mr. Griffin: Object to the reference to the ownership because the record is the best evidence.

"Mr. Pirkey: There is a claim here that there was an error in the deed.

"The Court: The deed speaks for itself.

"Mr. Pirkey: This is a direct attack on the deed and the deed is not conclusive under those circumstances. There is a direct claim here that the deed was not made out as they thought it was made out.

"Mr. Griffin: This deed was made out as the result of a partition and both parties were represented by attorneys.

"Mr. Pirkey: I think your honor can take this subject to objection.

"Mr. Griffin: I wish to except.

"The Court: As long as you object to it, I will have to rule on it at this time.

"Mr. Pirkey: I offer to show by this witness that up to the time of his death Mr. Schachner and Sophie Schachner occasionally talked about their property and what would become of it, and they had both stated that this deed to this property was made out in both names, and whichever one died the survivor would get it all, and that they had been told by the sheriff, who made out the deed, and they had directed him to make it out so that whichever one died first the other one would get all the property. And those statements were made at different times and occasions from the time of the execution of this deed introduced in evidence, being Plaintiff's Exhibit No. 1, until the time of their death, at various times when they discussed their affairs.

"Mr. Pirkey: Will your honor rule on the offer of proof?

"The Court: Yes; I will overrule it.

"Mr. Pirkey: I understand that all of the evidence will be ruled out. I had a number of other witnesses on that, and I understand it will be unnecessary to offer them under your honor's rules.

"The Court: It will not be necessary.

"Mr. Pirkey:...