Becker v. Stroeher
| Decision Date | 25 February 1902 |
| Citation | 66 S.W. 1083,167 Mo. 306 |
| Parties | BECKER et al., Appellants, v. STROEHER et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. R. Hirzel Judge.
Affirmed.
R. M Nichols for appellants.
(1) The trustee and the beneficiary in a deed of trust are necessary parties to a partition suit. Reinhardt v. Wendeck, 40 Mo. 577; Dameron v. Jamison, 71 Mo. 97; Yates v. Johnson, 87 Mo. 213; Harbison v. Sandford, 90 Mo. 477; Estes v. Nell, 108 Mo. 173; Hiles v Rule, 121 Mo. 249; Lilly v. Menke, 126 Mo. 214. (2) Admitting, as found by the court, that one of the owners of the deed of trust, Mr. Becker, was told by defendant Meyer that he had instituted a partition suit, there is no rule that requires the holder of a note, secured by a deed of trust, or a trustee, to inject themselves into litigation affecting the title to real estate covered by their mortgage. They may rest secure, and have the right to rest secure, on the principle of law that their rights can not be affected until they have had their day in court, and if litigants desire to affect their rights, it is their duty to bring them into court. Without their presence in court, so far as they are concerned, the decree in partition must be absolutely void. Hiles v. Rule, 121 Mo. 249; Hicks v. Schofield, 121 Mo. 381; Russell v. Grant, 122 Mo. 161; Lilly v. Menke, 126 Mo. 214; Landau v. Cottrill, 159 Mo. 308.
Kehr & Tittmann, Geo. W. Lubke, Jr., and F. A. C. MacManus, R. H. Stevens and Lange & Senn for respondents.
(1) The petition in the partition suit was filed in the clerk's office of the circuit court of St. Louis county on the twentieth day of August, 1896. The filing of the petition is the commencement of the suit. R. S. 1899, sec. 566; R. S. 1889, sec. 2013; South Mo. L. Co. v. Wright, 114 Mo. 332; State ex rel. v. Ross, 118 Mo. 49; State ex rel. v. Ross, 122 Mo. 456; McGrath v. Railroad, 128 Mo. 1; Moore v. Ruxlow, 83 Mo.App. 53. (2) One who deals with a tenant in common, respecting the property owned by him in common with others, takes the property subject to all the equities existing between that tenant and his co-tenants. Whether plaintiffs actually knew of the pendency of the partition suit complained of by them or not, they constructively had notice of its institution and pendency, and acquired whatever rights Ponath might give them in the property in question, subject to the rights of the plaintiffs in the partition suit. Beck v. Kallmeyer, 42 Mo.App. 563; Peck v. Williams, 113 Ind. 256; Foltz v. Wert, 103 Ind. 404; McCandless Appeal, 98 Pa. St. 489; Scott v. Guernsey, 48 N.Y. 106. (3) At the time the partition suit was brought the interest in the premises claimed by appellants was vested in Ponath, and as he was a party to the suit and appellants claim under him, they are conclusively bound by the partition. R. S. 1889, secs. 7160 and 7169; Hart v. Steedman, 98 Mo. 457; Holladay v. Langford, 87 Mo. 582. (4) The judgment in partition established the title to the land. Appellants not having asserted their claim in the partition suit, are now completely barred and can not assert title against any party claiming under the partition. Forder v. Davis, 38 Mo. 115; Holladay v. Langford, 87 Mo. 582; Bobb v. Graham, 89 Mo. 207; Hart v. Steedman, 98 Mo. l. c. 458; Ketchum v. Christman, 128 Mo. 42; Lindell R. E. Co. v. Lindell, 141 Mo. 83. (5) The possession of the defendants in the property in question is not joint, but several and adverse so far as the portion claimed by each is concerned. They could, therefore, not all be joined in one suit in ejectment. Keene v. Barnes, 29 Mo. 377.
The petition contained two counts, one in equity to divest 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 cotenants 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 and 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 August 20, 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 A. 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 A. 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 plaintiff's petition was in Stroeher, and up to said time he had executed no declaration of trust in favor of Ponath and 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 plaintiff's petition to Cyrus Hall, in trust, to secure to 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 right 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 & Brueggmann.
The count in equity seems to have been abandoned, as there was no finding or judgment upon it by the trial court, nor is 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.
The facts as disclosed by the record are substantially as follows:
On the twenty-eighth 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 twenty-ninth day of October, 1895, Louis Stroeher executed an instrument of writing, recorded January 31, 1899, which contains the following provision:
...
To continue reading
Request your trial