Barada-Ghio Real Estate Co. v. Keleher

• Decision Date: 09 July 1919
• Docket Number: No. 19813.,19813.
• Parties: BARADA-GHIO REAL ESTATE CO. v. KELEHER et al.
• Court: Missouri Supreme Court

214 S.W. 961

BARADA-GHIO REAL ESTATE CO. v. KELEHER et al.

No. 19813.

Supreme Court of Missouri, Division No. 2.

July 9, 1919.

Rehearing Denied October 10, 1919.

Appeal from Circuit Court, St. Louis County; Gustavus A. Wurdeman, Judge.

Action by the Barada-Ghio Real Estate Company, a corporation, against P. F. Keleher and another. From judgment for plaintiff, defendants appeal. Affirmed.

E. W. Mills and It. L. Shackelford, both of Clayton, for appellants.

Frank A. Thompson, of St. Louis, for respondent.

BOND, J.

I. Ejectment to recover possession of a house and lot in St. Louis county, Mo.

The petition was in two counts; the first in ejectment, the second to quiet title. On defendants' motion, the second count was struck out, and the case went to trial on the first count.

The defendants answered separately by general denial, except as to plaintiff's incorporation, and pleaded the 10 years' statute of limitations and averred actual, open, hostile, exclusive, continuos s, and peaceable possession for more than 10 years previous to the commencement of this action.

The reply to each answer was a general denial.

The jury found that plaintiff was entitled to possession of the property in question and assessed damages for unlawful detention of same at one dollar and found the monthly value"of rents and profits to be nothing.

From a judgment in accordance, defendants appealed.

II. The first error assigned by appellant relates to the giving, at the request of plaintiff, of what is termed "instruction No. 2." The instruction is not set out in appellants' brief. The record shows that for the plaintiff the court gave instructions to the jury in consecutive order without any numerals or other marks of separation other than might be deduced from their tenor.

Under the restricted pleadings in this case, the only issues presented were those arising under the general denials and affirmative pleas of title by adverse possession for 10 years. No equitable defenses were alleged in the form of a counterclaim praying for equitable relief, and hence the case was purely a legal action of ejectment.

The first two paragraphs of the unnumbered directions to the jury are to the effect that under the evidence in this case the record title to the property is in plaintiff, and that it would be entitled to possession thereunder unless the jury should find that the defendants, either or both of them, had acquired title under the statutes of limitations, and that the special pleas of that statute imposed the burden of proof upon the defendants. There are other clauses of the instructions which set out the elements of adverse possession and dealt with other phases of the evidence.

There was no error in these instructions. Plaintiff deraigned its record title through mesne conveyances to it by the grantee of defendant Jennie C. Keleher, in whom both parties showed the title was vested by warranty deed in the usual form, made in 1889 by Julius A. Grunewald and wife to Jennie C. Keleher, subject to certain incumbrances, which the grantee assumed and agreed to pay. Jennie C. Keleher, on April 16, 1914, deeded the property by quitclaim deed to the president of plaintiff company, who conveyed it to an employs of the company to hold as a matter of convenience. This employe reconveyed it by quitclaim in 1914 to the plaintiff corporation. The holder of the incumbrance on the land executed a deed of release to the original grantors, Grunewald and wife, on July 10, 1897. As the result of these conveyances, the legal title to the property was vested in the plaintiff corporation, and in this action could only be defeated by evidence proving to the satisfaction of the jury the accrual of the title in one or both defendants' by the statute of limitations based on adverse possession of the premises.

The vestiture of title in plaintiff corporation by the successive deeds running back to the original grantee Jennie Keleher was clear and complete and was not the subject of dispute; for under the covenants of the deeds emanating from Jennie C. Keleher, the original grantee, she and all persons claiming under her were estopped. Hence the court did right in declaring the legal effect of these conveyances as a vestiture of the paper or record title in the plaintiff. For although the title of the defendant Jennie Keleher was subject to a deed of trust at the time she acquired it from the Grunewalds, and although she only conveyed by quitclaim to the grantee under whom plaint...