Bredell v. Alexander

Decision Date02 December 1879
Citation8 Mo.App. 110
PartiesEDWARD BREDELL ET AL., Respondents, v. M. ALEXANDER ET AL., Appellants.
CourtMissouri Court of Appeals

1. In an action under the statute to quiet title, a judgment that the defendant bring suit within a certain time or be forever barred, is a ““final judgment,” from which an appeal will lie.

2. In such a proceeding the defendant may be compelled to assert any present adverse claim, whether legal or equitable, which may be enforced by an appropriate remedy.

3. An answer which shows that the defendants claim that the plaintiffs, as trustees in possession of certain church-property, are, in violation of their trust, holding this property of the church for certain seceding members thereof, and are offering it for sale to defray the expenses of building another house of worship for such members, shows such a claim as ought, under the statute, to be asserted or declared to be barred for failure to do so.

4. An averment of possession is admitted by an answer which simply argues against such possession; nor does the general statement that “all allegations, except as before admitted, are denied,” render such an ambiguous denial any the less an admission.

5. In pleading, all facts must be directly, distinctly, and definitely averred, or if traversed, unequivocally denied, so that nothing will be left to conjecture or inference.

APPEAL from the St. Louis Circuit Court.

Affirmed.

MCCOMAS & MCKEIGHAN, for the appellants: The answer, taken as a whole, denies the plaintiffs' possession: without actual possession the plaintiffs cannot maintain this action.-- Von Phul v. Penn, 31 Mo. 333; Rutherford v. Ulman, 42 Mo. 216. The statute only applies to such cases as can be brought by the defendant, and cannot be brought by the plaintiff by reason of the fact of his possession, and refers exclusively to possessory actions.-- Webb v. Donaldson, 60 Mo. 395. Under the pleadings, the plaintiffs have no “estate” to which the defendants can “claim” an adverse title.-- Reformed Church v. Verder, 4 Wend. 497; 2 Perry on Tr., sect. 732.HITCHCOCK, LUBKE & PLAYER, for the respondents: The answer expressly admits the allegation of the petition to be true: that in 1864 the premises in question were conveyed to the petitioners as trustees; and it is not suggested that petitioners have since then parted with or been deprived of the legal title thus vested in them.-- Peabody v. Eastern Methodist Soc., 5 Allen, 240; 2 Perry on Tr., sect. 730. The use to which, as averred in the answer, said premises were conveyed in 1864 to the petitioners was a charitable use, and one which the Statute of Uses would not execute in the cestuis que use.--1 Perry on Tr., sect. 66; Walter v. Walter, 48 Mo. 145; Bispham's Eq., sects. 116, 122, 131; 2 Perry on Tr., sect. 687; 2 Story's Eq. Jur., sects. 1165, 1169. A claim to an equitable interest such as is asserted in this answer is within the statute.-- Benoist v. Murrin, 47 Mo. 537.

HAYDEN, J., delivered the opinion of the court.

This is a proceeding brought under the sections of the Practice Act which provide that any person in possession of real property, claiming a certain estate therein, may file a petition averring that he is credibly informed and believes that the defendant “makes some claim adverse to the estate of the petitioner, and praying that he may be summoned to show cause why he should not bring an action to try the alleged title (if any);” that if the defendant claims title, he shall by answer show cause why he should not be required to bring an action and try such title; and that the court shall make such judgment or order respecting the bringing and prosecuting of such action as may seem just.” Wag. Stats. 1022, sects. 53, 54. The defendant appeared and answered, and upon the answer the court below, on January 6, 1879, upon motion of the plaintiffs, ordered that the defendants, on or before the first day of May, 1879, bring suit to try the title, and, in default, be barred from claiming any adverse right in or title to the premises. From this order the defendants appealed.

A preliminary question raised is whether this order was such a “final judgment or decision” that an appeal lies. We think it is such, for the reason that it settles the issues of this action, which the Legislature has seen fit to make a suit by itself. The fact that in another suit--namely, that to try the title--further issues may arise, does not prevent this order or judgment from being final. So, the mere possibility that in a suit of this kind there may be a default, or the defendant may disobey the order, and so the way be open, through the neglect or misconduct of a party, for a judgment of estoppel, which would conclude the whole controversy, cannot destroy the right of a contesting defendant as to whom the issues of this proceeding have been adversely decided, and who must appeal on the decision of such issues, or never. Such a defendant might, indeed, disobey the order; but there can be no compulsion upon him to do so, and thereby sacrifice a right. He is not obliged to adjust in one action a controversy of which the law makes two. In each of the suits the plaintiff might have an appeal; why should the defendant have an appeal in only one?

The plaintiffs claim to be seized in fee, and their petition follows the statute. The answer is too long to be set out, and some of its allegations amount to arguments. Its substance is, that the property, in 1864, was conveyed to the plaintiffs in trust that there should be built on it a church, to be known as the Sixteenth Street Presbyterian Church, to be used as a place of worship by a congregation organized under the jurisdiction of the then Presbytery of St. Louis and Synod of Missouri; that there was afterwards a dispute as to the ecclesiastical connection of the church, and that the plaintiffs' party insisted upon adhering to a schismatically organized presbytery and synod, while the Sixteenth Street Church, as represented by the defendants and their part of the congregation, adhered to the regular and lawful presbytery and synod; that the plaintiff party, who are seceders and a minority, are offering to sell the property and leave the defendant party no place in which to worship; that the plaintiffs claim that they hold the property exclusively for the seceding party, and that this constitutes the church; while the non-seceders insist that the plaintiffs hold the property in trust for that part of the congregation which keeps up its regular ecclesiastical connection.

It is true that the present action is peculiar, yet what the defendants claim should be set forth as facts, not argumentatively; nor are they relieved from the obligation of conforming their answer to the rules of pleading. They are bound to tender issues directly; and they cannot increase their rights by the ambiguity of their denials. The direct averment of the petition that the plaintiffs are in possession is susceptible of a plain denial, and if not so denied, is admitted. An argumentative denial is indirectly an admission, since it raises against the pleader the inference that he was unable to deny as the Practice Act requires. Such a denial is forbidden by two rules of pleading: First, that facts must be alleged by direct averment; second, that they must be alleged with...

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5 cases
  • Northcutt v. Eager
    • United States
    • Missouri Supreme Court
    • 28 Enero 1896
    ...in those cases, and placed too narrow a limit on this sort of action. In the Colline, etc., Ass'n case, as well as in Bredell v. Alexander (1879) 8 Mo.App. 110, it held, in consonance with the ruling in Benoist v. Murrin, that any adverse claim, whether legal or equitable, that might be pre......
  • Dyer v. Baumeister
    • United States
    • Missouri Supreme Court
    • 31 Octubre 1885
    ...without evidence of possession and title to that extent. Von Phul v. Penn, 31 Mo. 333; Campbell v. Allen, 61 Mo. 581; Bredell v. Alexander, 8 Mo. App. 110; Brown v. Matthews, 117 Mass. 506. (2) It is immaterial how appellants obtained possession, even if by fraud or actual force. Reed v. Ca......
  • Dyer v. Krackauer
    • United States
    • Missouri Court of Appeals
    • 15 Mayo 1883
    ... ... recovered without evidence of possession and title to that ... extent.-- Campbell v. Allen, 61 Mo. 581; Bredell ... v. Alexander, 8 Mo.App. 110; Brown v. Matthews, ... 117 Mass. 506. The possession must be a pedis ... possessio, defined by Taylor in his " ... ...
  • Dyer v. Krackauer
    • United States
    • Missouri Court of Appeals
    • 15 Mayo 1883
    ...and they could not have recovered without evidence of possession and title to that extent.-- Campbell v. Allen, 61 Mo. 581; Bredell v. Alexander, 8 Mo. App. 110; Brown v. Matthews, 117 Mass. 506. The possession must be a pedis possessio, defined by Taylor in his “Law Glossary” to be “a foot......
  • Request a trial to view additional results

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