Becker v. Stroeher

• Decision Date: 04 February 1902
• Citation: 167 Mo. 306,66 S.W. 1083
• Parties: BECKER et al. v. STROEHER et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Missouri Supreme Court

66 S.W. 1083

167 Mo. 306

BECKER et al. v. STROEHER et al.^†

Supreme Court of Missouri, Division No. 2.

February 4, 1902.

PARTITION — PARTIES — JUDGMENT — CONCLUSIVENESS — RES ADJUDICATA — DEED — SUFFICIENCY — DECLARATION OF TRUST — RECORD NOTICE — EJECTMENT — PARTIES DEFENDANT — JOINDER OF ACTION.

1. A beneficiary or trustee in a deed of trust executed after the commencement of a partition suit by a party thereto is not a necessary party to the suit.

2. Under Rev. St. 1889, § 7160, providing that a judgment in partition shall be conclusive on all parties thereto and on all persons claiming under them, a judgment in partition is conclusive as to persons claiming under a mortgage executed by a party to a partition suit after the commencement of the suit, but before the rendition of the judgment therein.

3. An instrument declaring a trust, but containing no operative words of conveyance, or words showing an intention of the grantor to pass the legal title, is insufficient to create a legal estate in the grantee.

4. A recorded deed of land embraced in a trust deed which contained no words of conveyance, and was inoperative to convey title, by a beneficiary in the trust deed, will not impart constructive notice of the interest of the grantee, to a subsequent purchaser of the legal title, as the deed is not in the chain of title.

5. Persons holding separate and distinct portions of a tract of land cannot be joined as parties defendant in ejectment to recover the entire tract.

6. Plaintiff in ejectment cannot recover unless he shows a legal title to all or a portion of the land in controversy.

Appeal from St. Louis circuit court; R. Hirzel, Judge.

Suit by C. J. Becker and others against Louis Stroeher and others. From a judgment in favor of the defendants, the plaintiffs appeal. Affirmed.

The petition contained two counts, — one in equity to devest the title of the property in controversy out of Louis Stroeher, as trustee, and vest the same in plaintiffs and certain other beneficiaries named in the petition as co-tenants with plaintiffs; and the other count was in ejectment. The answers of the defendants the Mississippi Valley Trust Company, administrator of August Brueggmann, and Pearl A. Brueggmann, a minor, by the Mississippi Valley Trust Company, her duly appointed curator, Louis Gloeckner, and Louis James, were general denials. The answers of defendants Louis Kittlaus, Ferdinand Meyer, Elias K. Moss, Joseph A. Duffy trustee of John O'Connell, John O'Connell, Anna O'Connell, Anna Huber, and Alexander Huber, her husband, are substantially the same, and deny all allegations of the petition, except that they admit that the title to the property described in the petition was conveyed, as alleged, to Louis Stroeher, in trust for Ponath, Meyer, and Brueggmann, but aver that Ponath and Brueggmann were partners, and that the land was conveyed to Stroeher in trust for them as partners, and allege that the same was paid for out of the funds belonging to the partnership; that Edward H. Ponath became and is the surviving partner, and as such took out letters of administration, and inventoried the interest in said real estate as partnership assets; that the partnership estate was insolvent; that on the 20th of August, 1896, proceedings were instituted by Ferdinand Meyer and Patrick O'Connell in the circuit court of the county of St. Louis for the partition of the real estate described in the petition; that said partition was against Edward H. Ponath, as administrator of Ponath & Brueggmann and against Edward H. Ponath individually; that said partition suit progressed to final judgment, and that part of the land was set off to Louis Gloeckner, as assignee of Edward H. Ponath, and to Edward H. Ponath, subject to the rights of the partnership creditors; that in said partition suit $329.51 costs were adjudged against Edward H. Ponath, and Edward H. Ponath as administrator of Ponath & Brueggmann, and Louis Gloeckner, assignee; that execution was levied upon all of the right and title of Edward H. Ponath, and Edward H. Ponath as administrator, and Louis Gloeckner as assignee, and that the same was sold on April 18, 1898, part to Louis Kittlaus, and part to Elias K. Moss; that on September 1, 1896, the legal title to the real estate described in plaintiffs' petition was in Stroeher, and up to said time he had executed no declaration of trust in favor of Ponath & Brueggmann, or either of them, and that on or about said last-mentioned date there was filed for record an instrument purporting to be executed by Edward H. Ponath, by which he pretended to convey an undivided one-third interest in the property described in plaintiffs' petition to Cyrus Hall, in trust to secure Antole Ruif the payment of certain notes; that a sale was advertised under the power in said deed of trust about October 25, 1897, and that plaintiffs became the alleged owners of said undivided one-third interest; that, if such conveyance was actually executed by the said Edward H. Ponath, the same was executed in fact without any consideration, and was executed in fraud of plaintiff in said proceeding for partition; and, further, that the interest of said Ponath and his privies in the real estate described in the petition is subject to the rights of the creditors of the insolvent partnership of Ponath & Brueggmann. The answer of Louis Kittlaus seeks affirmative relief to the end that, "if this court find that plaintiffs have an interest in the real estate in their petition described, this court may decree such interest to be immaterial and trivial, and not entitling plaintiffs to recognition by this court for the relief prayed in their petition," and for general relief. The answer of Ferdinand Meyer, by way of cross action, described the property allotted to him in the partition suit, and alleges that he entered into the possession of the same, and from the time of said allotment in said partition suit has been in possession thereof, and that the plaintiffs claim some right, title, or estate in said real estate adverse to the title and interest of this defendant; and he prays that the court ascertain and define his said title to said real estate, and for other and further relief. The answer of Joseph A. Duffy, trustee, et al., also prays the court to ascertain the estate, title, and interest of plaintiffs, and define the same, and determine the rights of the defendants, and adjudge by its decree the estate of all parties, and the several interests therein. The reply to the new matter contained in the several answers, after a general denial, sets up the fact that the plaintiffs had no notice of the interest of Edward H. Ponath being partnership property, if the same was or is property of the partnership formerly composed of Ponath and Brueggmann. The count in equity seems to have been abandoned, as there was no finding or judgment upon it by the trial court, nor in any point made upon it in this court. The issues on the count in ejectment were submitted to the court, — a jury being waived, — who refused all declarations of law asked by the respective parties, found for defendants, and rendered final judgment in their favor. The case is before us on plaintiffs' appeal.

R. M. Nichols, for appellants. Geo. W. Lubke, Jr., F. A. C. MacManus, R. H. Stevens, Lange & Senn, and Kehr & Tittman, for respondents.

BURGESS, J.

(after stating the facts). The facts as disclosed by the record are substantially as follows: On the 28th of June, 1892, the legal title to the land in question was vested in the defendant Louis Stroeher by deed of record; he having acquired said title by sheriff's deed in a partition suit, the granting part of which is in the following words: "Do assign, transfer, convey, and set over unto the said Louis Stroeher, his heirs and assigns," etc. On the 29th day of October, 1895, Louis Stroeher executed an instrument of writing, recorded January 31, 1899, which contains the following provision: "And whereas, the considerations in the said conveyance [meaning the sheriff's deed in partition above referred to], or any part thereof, was not paid by me, and the real estate hereinafter described was purchased by me at said sale, and said conveyance was made to me for the sole use and benefit of Edward H. Ponath, August Brueggmann, and Ferdinand Meyer, each of whom was entitled to a one-third interest therein; and whereas, the said Ferdinand Meyer, for a sufficient consideration, afterwards conveyed, in writing, an undivided, one-sixth interest in said property (being one-half of his aforesaid one-third interest therein) to John Heusner, of the city of St. Louis; and whereas, the said John Heusner afterwards, for a valuable consideration, conveyed to Patrick O'Connell, of No. 2,917 Spring avenue, in the city of St. Louis, state of Missouri, the said undivided one-sixth interest and part of said real estate acquired by him from said Ferdinand Meyer as aforesaid, and the said Patrick O'Connell is now the owner of the said undivided one-sixth of an interest in said real estate; and whereas, it is deemed proper, by way of further assurance to the said Patrick O'Connell, that the said Stroeher, Meyer, and Heusner should, by an instrument by them executed, solemnly declare and state the foregoing facts. * * * Know all men by these presents that we, the said Louis Stroeher, of the city of St. Louis and state of Missouri, and the said Ferdinand Meyer, of the city of St. Louis and state aforesaid, and the said John Heusner, of the city of St. Louis and state of Missouri, for and in consideration of the facts aforesaid, and of the sum of five dollars to us in hand paid by the said Patrick O'Connell, the receipt of which is hereby acknowledged, do by these presents grant, convey, quitclaim, and release unto the said Patrick O'Connell an undivided one-sixth of the lots, lands, and real estate hereinbefore in this deed described." On the 20th of August, 1896,...