Bagby v. M.-K.-T. Railroad Co.

• Citation: 171 S.W.2d 673
• Decision Date: 03 June 1943
• Docket Number: No. 38029.,38029.
• Parties: JULIAN H. BAGBY, Trustee for the City of Sedalia, a Municipal Corporation, and THE CITY OF SEDALIA, MISSOURI, a Municipal Corporation, Appellants, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a Corporation.
• Court: United States State Supreme Court of Missouri

171 S.W.2d 673

JULIAN H. BAGBY, Trustee for the City of Sedalia, a Municipal Corporation, and THE CITY OF SEDALIA, MISSOURI, a Municipal Corporation, Appellants, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a Corporation.

No. 38029.

Supreme Court of Missouri.

Court en Banc, June 3, 1943.

Appeal from Pettis Circuit Court. — Hon. Dimmitt Hoffman, Judge.

AFFIRMED.

Fred F. Wesner and Wm. F. Brown for appellants.

(1) The third amended petition states a good cause of action under Section 1684, Chapter 8, Article 8, R.S. 1939. Huff v. Laclede Land & Imp. Co., 57 S.W. 715, 157 Mo. 65; Garrison v. Frazier, 65 S.W. 229, 165 Mo. 40; Ball v. Woolfolk, 75 S.W. 410, 175 Mo. 278; Graton v. Holliday-Klotz Land & Lbr. Co., 87 S.W. 37. (2) This statute is very broad in its terms and as it is highly remedial and beneficial in its purposes it should be given a very liberal construction. One of the objects of this statute is to give a right of action to any person claiming an estate or interest in lands and to permit a defendant to set up any defense he may have. It is as broad and far reaching in its terms as language can make it. Talbert v. Grist, 201 S.W. 906, 198 Mo. App. 499; Johnson Timber & Realty Co. v. Belt, 46 S.W. (2d) 153, 329 Mo. 515. (3) The third amended petition of appellants states a good and sufficient cause of action under the terms and provisions of Section 916, Article 5, Chapter 6, Revised Statutes of Missouri, 1939. Shoptaugh v. St. Louis & S.F.R. Co., 126 S.W. 752. (4) The general rule is that if the petition is a substantial compliance with the terms of the statute, it is sufficient. State ex rel. New Madrid County v. Gordon, 168 S.W. 769. (5) The Civil Code of Procedure prescribes no set formula for stating a cause of action arising under the terms and provisions of the statutes upon which this cause of action is based. Therefore, all facts which are necessarily implied are deemed to be pleaded. Hegberg v. St. Louis & S.F.R. Co., 147 S.W. 192. (6) The third amended petition states a good cause of action under Section 5128, Chapter 33, Article 2, Revised Statutes of Missouri, 1939. Coates & Hopkins Realty Co. v. K.C. Terminal Ry. Co., 43 S.W. (2d) 817; State ex rel. State Highway Comm. v. Griffith, 114 S.W. (2d) 976; City of University City v. Chicago, R.I. & P. Ry. Co., 149 S.W. (2d) 321; Brown v. Weare, 152 S.W. (2d) 649, 136 A.L.R. 286. (7) The third amended petition states facts sufficient to state a cause of action at law and seeks to obtain a judicial decision and finding of facts that plaintiffs are the owners in fee of the land involved and described in the petition, and the cause is triable to a jury. Pearson v. Heumann, 242 S.W. 946; Stewart v. Stewart, 262 S.W. 1016; Jacobs v. Waldron, 298 S.W. 773. (8) The third amended petition states a good cause of action under Section 1684, Chapter 8, Article 8, Revised Statutes of Missouri, 1939, and Section 5128, Chapter 33, Article 2, Revised Statutes of Missouri, 1939. (9) The better practice requires that a written instrument should not be pleaded by setting the same out in the petition, but on the contrary it should be pleaded by its legal effect. 1 Houts Missouri Pleading & Practice, sec. 107, p. 204; Chouteau v. St. Louis, 55 S.W. (2d) 299; Cantrell v. Knight, 72 S.W. (2d) 196. (10) The appellant was only required to plead ultimate facts, not means of proof. Smith v. Nussbaum, 71 S.W. (2d) 82. (11) The appellants are the legal grantees, holders and owners of the fee simple title to the real estate by record conveyance from the original voluntary grantors and the heirs thereof, and as such are the real parties in interest and entitled to sue. Wabash Ry. Co. v. Chauvin, 144 S.W. (2d) 110.

Carl S. Hoffman, W.H. Martin and Montgomery, Martin & Montgomery for respondent.

(1) In an action to determine title, where it affirmatively appears from the allegations of the petition that the plaintiffs' claim of title is without foundation and that the respondents are the owners and holders of a superior title, a demurrer to the petition on the ground that the petition fails to state facts sufficient to constitute a cause of action should be sustained. Chouteau v. St. Louis, 331 Mo. 781, 55 S.W. (2d) 299. (2) A demurrer does not admit those allegations of a petition which are but conclusions of law or conclusions of fact. Chouteau v. St. Louis, 331 Mo. 781, 55 S.W. (2d) 299; Donovan v. Boeck, 217 Mo. 70, 83, 116 S.W. 543; Jones v. Jefferson, 334 Mo. 606, 66 S.W. (2d) 555. (3) In ruling a demurrer the specific allegations of fact in the petition are to be taken as controlling over general statements of fact which are contradicted by the specific statements. D'Oench v. Gillioz, 346 Mo. 179, 139 S.W. (2d) 921; Farm & Home Savs. & L. Assn. v. Armstrong, 337 Mo. 349, 85 S.W. (2d) 461. (4) Where it is not contended that the deeds from respondents' grantors by their terms in any wise limited the estate conveyed, it must be presumed that such grantors undertook to convey by their deeds all of their interests and estates in the lands covered. Sec. 3496, R.S. 1939; McMahill v. Schowengerdt, 183 S.W. 605. (5) The words "voluntary grants" as used in Sec. 5128, R.S. 1939, mean grants unsupported by a valuable consideration. Sec. 5128, R.S. 1939; Coates & Hopkins Realty Co. v. Kansas City Term. Ry. Co., 328 Mo. 1118, 43 S.W. (2d) 817; Brown v. Weare, 152 S.W. (2d) 649. (6) The grants made to the respondent railway company in consideration of the construction and maintenance by it of car shops upon the premises were supported by a valuable consideration, it appearing that the railway company did construct its shops thereon. A valuable consideration may be of other than a monetary character. 17 C.J.S. 435. (7) The location of public buildings, factories, railroad shops, and the like, at particular points is a valuable consideration supporting either conveyances or contracts made to accomplish this result. 17 C.J.S. 432. (8) Contracts between railroad companies and others whereunder the company agrees to locate its shops at a particular point in consideration of pledges of property or land made by the other contracting parties are supported by a valuable consideration and are enforceable at the instance of either of the parties thereto. 51 C.J., pp. 469-471; Workman v. Campbell, 46 Mo. 305; Mo. Pac. Ry. Co. v. Tygart, 84 Mo. 263; Hayti Development Co. v. Barnes. 281 Mo. 221, 216 S.W. 733; Maupin v. C., R.I. & P. Ry. Co., 171 Mo. 187, 71 S.W. 334. (9) Where a conveyance is made in consideration of the performance of a specified act, the performance of the act is a valuable consideration for the conveyance, though the act be done after the conveyance. Underwood Typewriter Co. v. Century Realty Co., 220 Mo. 522, 119 S.W. 400; Cox v. A.P. Green Firebrick Co., 230 Mo. App. 774, 75 S.W. (2d) 621; Stanley v. Schwalby, 162 U.S. 255, 16 S. Ct. 754, 40 L. Ed. 960; Pitt v. Gentle, 49 Mo. 74. (10) The allegations in the petition show that there was a joint offer made by the respondents' grantors, the Moreys and the Porter Real Estate Company, and those inhabitants of Sedalia who contributed to the $100,000 fund to the railway company to induce it to locate its shops upon the land in question, and the undertakings of and the acts done by each and all of such parties afforded a valuable consideration for the undertakings and acts done by all of the others. Morey v. Clopton, 103 Mo. App. 368, 77 S.W. 467; Maupin v. C., R.I. & P. Ry. Co., 171 Mo. 187, 71 S.W. 334. (11) A partial failure of the consideration for a grant does not affect the efficacy of the grant to convey the title. 18 C.J. 168. (12) There has been full performance of the consideration for the grants in question as the provisions of contracts and deeds requiring a railroad company to permanently locate shops or other facilities at a particular place do not require the railroad company to operate the same in perpetuity and are complied with where the company performs over a period of years and for so long as the needs and necessities of its business permit. Texas & Pacific Ry. Co. v. Marshall, 136 U.S. 393; Chouteau v. St. Louis, 331 Mo. 781, 55 S.W. (2d) 299; Annotation, 7 A.L.R. 817. (13) Even though the petition is regarded as charging that the deeds to the respondent Railway Company were conditional, it nevertheless appears that all such conditions have been fully performed. Texas & Pacific Ry. Co. v. Marshall, 136 U.S. 393; Chouteau v. St. Louis, 55 S.W. (2d) 299; Meade v. Ballard, 7 Wallace, 290; Jefferson M. & I.R. Co. v. Barber, 89 Ind. 373; Sheets v. Vandalia R. Co., 127 N.E. 609; O.T. Jones Corp. v. Pacific Elec. Co., 65 Pac. (2d) 368; Louisville & N.R. Co. v. Johnson's Admx., 270 S.W. 58; City of Huntington v. Morgan, 162 N.E. 253; Maryland & P.R. Co. v. Silver, 73 Atl. 297; Scheller, Admr. v. Tacoma Ry. & Power Co., 184 Pac. 344. (14) Clause Two of Sec. 5128, R.S. 1939, was only intended to apply to voluntary grants of land made in aid of the construction, maintenance and accommodation of the railways or lines of track of railroad corporations and such statute cannot be construed as applying to all voluntary grants made to railroad corporations for any purpose without distortion of the language used and without ignoring the evident legislative purpose. Sec. 5128, R.S. 1939; University City v. C., R.I. & P. Ry. Co., 149 S.W. (2d) 321; Brown v. Weare, 152 S.W. (2d) 649; Coates & Hopkins Realty Co. v. Kansas City Term. Ry. Co., 328 Mo. 1118, 43 S.W. (2d) 817.

WESTHUES, C.

This is a suit to try title to real estate. The trial court sustained a demurrer to plaintiffs' petition. Plaintiffs refused to plead further and the court found the issues for the defendant. From the judgment entered plaintiffs appealed.

The trial court sustained the defendant's demurrer on two grounds. First, because the petition failed to state facts sufficient to constitute a cause of action and second because it affirmatively appeared...