Barron v. Wright-Dalton-Bell-Anchor Store Co.
| Decision Date | 18 February 1922 |
| Citation | 237 S.W. 786,292 Mo. 195 |
| Parties | WILLIAM N. BARRON v. WRIGHT-DALTON-BELL-ANCHOR STORE COMPANY et al.; WRIGHT-DALTON-BELL ANCHOR STORE COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Butler Circuit Court. -- Hon. Almon Ing, Judge.
Affirmed.
Sam M Phillips, E. R. Lentz and Ed. L. Abington for appellant.
(1) When the plaintiff dismissed his alleged cause of action and the court rendered judgment against plaintiff for costs, that was a final determination of the cause, and the court had no jurisdiction to render any further or other judgment in the said cause. R. S. 1919, secs. 1410, 1528; Standard Enc. of Procedure, 978, 986; Weithopt v. St. Louis, 158 Mo 659; Lee v. Kaiser, 80 Mo. 431; State ex rel Cass County v. Mo. Pac. Ry. Co., 149 Mo. 104; Waterworks Co. v. School Dist., 23 Mo.App. 234. (2) Plaintiff in this case must recover, if at all, on the allegations of his petition and not on the allegations in his replication. Nor can the allegations in the replication in any manner aid the petition. In this case the estoppel not being plead in the petition is not pleaded at all. The petition alleges that the plaintiff is the owner in fee simple of the land in controversy. The replication practically concedes that he is not the owner in fee simple but alleges that the defendant is estopped to assert its superior title. This is a clear departure from the petition and is an attempt to plead an entirely different cause of action. Matheson v. Ry. Co., 118 S.W. 12; Rhodes v. Land & Lumber Co., 105 Mo.App. 279; Milliken v. Comm. Co., 202 Mo. 654; Hill v. Rich Hill Coal Co., 119 Mo. 9. (3) To constitute estoppel in pais five things must concur as essential elements of estoppel: (a) There must be a false representation or an unlawful concealment of material facts; (b) the representation must have been made with the knowledge of the facts; (c) the party to whom the representations were made must have been without a knowledge of the facts, and without any convenient and available means of acquiring such knowledge; (d) the representations must have been made with the intention that the other party would act upon it; and (e) he must have acted on it to his detriment. In the instant case it devolved upon the plaintiff to allege and prove all of these essential elements. If he fails to allege and prove any one of these essential elements his whole defense of estoppel fails. Tiedeman on Real Property, sec. 725; Bigelow on Estoppel (3 Ed.), p. 484; 16 Cyc. 726-7; 5 Elliott on Contracts, sec. 4938, note 79; 8 Standard Ency. Procedure, p. 697; Blodgett v. Perry, 97 Mo. 263; Shield v. McClure, 75 Mo.App. 631; Brummell v. Adams, 146 Mo. 70; Bales v. Perry, 51 Mo. 631; Gallagher v. Northrup, 74 N.E. 711. (4) Estoppel must be pleaded, and the pleading must allege the facts relied upon with certainty, precision and particularity, no intendments being indulged. The pleading must contain all the elements of estoppel. Grooms v. Morrison, 249 Mo. 544; Thompson v. Lindsay, 242 Mo. 53; Casler v. Gray, 159 Mo. 508; Chance v. Jennings, 159 Mo. 544; Sanders v. Chartrand, 158 Mo. 352; Avery v. Ry. Co., 113 Mo. 561. (5) Mere silence, or some act done, will not estop a party where the means of knowledge are equally open to both parties. Especially is that true where, as in this case, the party invoking the estoppel had constructive notice of the deed to defendant, had the means ready at hand to ascertain the fact and neglected to avail himself of the means at hand. Blodgett v. Perry, 97 Mo. 273; Bader v. Milling Co., 134 Mo.App. 145; Bales v. Perry, 51 Mo. 449; Harrison v. McReynolds, 183 Mo. 533. (6) In addition to notice to plaintiff by the record of the deed from Kramer to defendant, the defendant was in possession of the property in question at the time defendant took his deed from defendant's grantor, under its recorded deed and also under a lease from the same grantor, which inadvertently overlapped and included the land in controversy, which lease had not yet expired. It had the absolute right of possession under either the deed or the lease. This possession was notice to plaintiff and to all the world of every claim which the defendant had or could make to said property. An inquiry of the defendant would have elicited these facts. Plaintiff made no inquiry, this failure to make inquiry constituted gross negligence on his part and precludes him from asserting estoppel. Wiggenhorn v. Daniels, 50 S.W. 808; Ins. Co. v. Smith, 116 Mo. 261. (7) The doctrine of estoppel in pais always presupposes fraud on one side and error upon the other. The element of fraud is essential either in the intention of the party estopped, or in the effect of the evidence set up. In order to work estoppel there must be some intended deception in conduct or declaration or such gross negligence as to amount to constructive fraud. Spahr v. Cape, 122 S.W. 384; 2 Herman on Estoppel, sec. 944; Tennant v. Ins. Co., 133 Mo.App. 361; Bales v. Perry, 51 Mo. 449; Austin v. Loring, 63 Mo. 19; Newton v. Rebnach, 90 Mo.App. 650; Crary v. Dye, 210 U.S. 515. (8) Plaintiff claims under a second deed from defendant's grantor. Defendant's deed contained an express covenant of general warranty as well as the statutory covenant implied from the use of the words grant, bargain and sell. She was thereby estopped from asserting any title or claim to the land, thus conveyed, in derogation of the title conveyed by her own deed. Barron is in no better position, for he is her grantee in a subsequent deed; he stands in privity with her, he is estopped from alleging anything in derogation of said deed in the same manner and to the same extent as his grantor would have been. Tiedeman on Real Property, secs. 727, 731; 16 Cyc. 686B; Steele v. Culver, 158 Mo. 136; Johnson v. Johnson, 170 Mo. 34; Broadwell v. Merritt, 87 Mo. 95; Orchard v. Store Co., 264 Mo. 554. (9) Barron cannot successfully assert that defendant is estopped from claiming the piece of land in controversy, because defendant accepted a lease of said land from Mrs. Kramer prior to Barron's purchase, for the reason that Barron was not a party to the said lease, therefore he is not in a position, being a stranger to the lease, to assert that it estops defendant in its claim of ownership to the land in suit. Cottle v. Sydnor, 10 Mo. 473; Glasgow v. Lindell, 50 Mo. 60; Glasgow v. Baker, 72 Mo. 441; Lovelace v. Carpenter, 115 N.C. 424; Gaffney v. Clark, 115 S.W. 330; State v. King, 64 W.Va. 610; State v. King, 64 W.Va. 546; 9 C. J. p. 239.
J. F. Woody and Arnot L. Sheppard for respondent.
(1) Where after dismissal of the cause parties voluntarily appear and without objection on that ground, try their case and have all of the opportunities for defense they choose to employ they cannot afterwards, when defeated, be heard to say that the court lost jurisdiction to determine the controversy. Scott v. Davis, 200 S.W. 725; Gate City Bank v. Strother, 196 S.W. 447. In appellant's answer it asked the court for affirmative relief, viz., that the title to the land in its answer be quieted in it. Therefore, even though respondent had attempted to dismiss his cause of action the court would not thereby have been divested of jurisdiction to proceed to judgment upon the answer which in all essentials then became the petition in the case, and was sufficient upon which to base the decree rendered. Graves v. Chapman, 248 Mo. 83; Adams v. Cary, 226 S.W. 834. (2) This plea of estoppel was set up to defeat appellant's claim of title. Allen v. Sales, 56 Mo. 36; Suddath v. Roberts, 118 Mo. 295. Estoppel may be used in rebuttal without being pleaded where the proof thereof is admitted without objection, or where it is shown by appellant's proof. 16 Cyc. 809; 21 C. J. 1245 et seq., Ess v. Griffith, 139 Mo. 322; McDonnell v. Bank, 175 Mo. 275; McClure v. Bank, 263 Mo. 128; Brown Const. Co. v. McArthur Bros., 236 Mo. 50. (3) Respondent relies upon more than one ground of estoppel in this action. Appellant in its brief discusses only estoppel in pais. (a) Appellant is now estopped to claim title to the land in controversy by reason of the proceedings in the case of Wright-Dalton-Bell-Anchor Store Company v. Barron, wherein it sought to recover from the defendant therein, respondent here, the value of a so-called building, part of which was on the land in controversy, basing its right to recover on the fact that respondent owned such land. The fact that appellant in that proceeding took the position that respondent was the owner of such land will now estop it from taking a conflicting position to the latter's prejudice. Wilson v. McDaniel, 190 S.W. 3; Mayes v. Cunningham, 204 S.W. 404; Cashion v. Gargus, 267 Mo. 68; Bowman v. Anderson, 268 Mo. 1; Wadlow v. School Dist., 212 S.W. 904; Auction Co. v. Shore, 179 S.W. 769; Mining Co. v. Guthrie, 189 Mo.App. 108; Columbia Brew. Co. v. Miller, 124 Mo.App. 384; Cooney v. Laird, 153 Mo. 435; McClure v. Clement, 161 Mo.App. 23; Reiger v. Faber, 116 Mo.App. 123; Benseick v. Cook, 110 Mo. 173; Lilly v. Menke, 143 Mo. 137; State v. O'Neill, 151 Mo. 67. Admissions contained in pleadings may be used against the party in another suit; and this, wholly regardless of the question whether or not the person himself was in fact cognizant of the pleadings. The act of the attorney in such case will be held to be the act of the party. Dowzelot v. Hawlings, 58 Mo. 75; Warfield v. Lindell, 30 Mo. 287; Schad v. Sharp, 95 Mo. 573; Turner v. Baker, 64 Mo. 245; Sanford v. Railroad, 40 Mo.App. 27; Bowman v. Heating Co., 80 Mo.App. 636; Kirkpatrick v. Railroad, 211 Mo. 68; St. Louis v. U. Rys. 263 Mo. 436; Boothe v. Cheek, 253 Mo. 128. (b) Appellant procured a deed to the land in controversy in 1895; leased the same land in 1901...
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