Beckmann v. Beckmann
| Decision Date | 04 April 1933 |
| Docket Number | No. 22017.,22017. |
| Citation | 58 S.W.2d 490 |
| Parties | BECKMANN et ux. v. BECKMANN. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County; Fred E. Mueller, Judge.
"Not to be published in State Reports."
Suit by Charles H. Beckmann and wife against Charles H. Beckmann, also known as Dr. C. H. Beckmann. From a judgment dissolving a temporary injunction theretofore granted and dismissing plaintiffs' petition, plaintiffs appeal.
Reversed and remanded.
E. P. & R. C. Brinkman and F. D. Chilcott, all of St. Louis, for appellants.
Bernard Brown, Herbert E. Bryant, and John Haley, all of St. Louis, for respondent.
BENNICK, Commissioner.
This is a suit in equity, the purpose of which is to have the court enjoin defendant from committing what is alleged to be waste on certain real estate pending the final determination of an ejectment suit between the same parties. The plaintiffs are husband and wife, and the parents of the defendant. Suit was instituted in the circuit court of St. Louis county on May 29, 1930.
The petition alleged that plaintiff's were the owners in fee and by the entirety of the real estate in question (consisting of 23.47 acres of open, agricultural land); that defendant was in possession of a part thereof under a contract of sale executed by and between the parties on May 12, 1928; that the conditions of said contract had been broken by the defendant; that there was pending in the court an action to eject defendant from the premises; and that defendant, on or about May 26, 1930, did commit, was then committing, and was threatening to continue to commit, waste upon that part of the land of which he was in possession, in that he was cutting and removing a great amount of sod and turf from the land, all to plaintiffs' damage in and to the freehold.
The prayer was for an injunction restraining and enjoining defendant from further cutting and removing sod and turf during the pendency of the ejectment suit, and for such other and further orders and decrees as to the court should seem equitable and just.
The answer was a general denial, coupled with a prayer that the temporary restraining order theretofore issued in the cause be dissolved, and that defendant be discharged with his costs.
The contract of sale which was entered into between the parties on May 12, 1928, provided that for a valuable consideration plaintiffs agreed to sell defendant the premises, less a tract of 6.589 acres specifically described and exempted, within twenty years from August 20, 1927; that the purchase price should be the sum of $10,000, payable in annual installments of $500 each upon the first of September of each year, and commencing September 1, 1928; and that when $5,000 and interest should have been paid, plaintiffs were to execute a warranty deed to defendant, and he in turn was to execute in their favor a first deed of trust for $5,000, payable in five years from date, and bearing interest at the rate of 6 per cent. per annum, payable semiannually.
Following the execution of the contract, defendant concededly entered into possession of the premises, and has remained in possession since that date. A first payment of $500 on the principal was made in September 1, 1928, and an interest payment of $300 was made in March, 1929. The readiness and willingness of defendant to complete the contract by payment of any and all sums due thereunder is one of the issues in the ejectment suit.
On December 26, 1929 (antedating the present suit by some five months), the ejectment suit was begun, the facts of which may be found stated in our opinion in the case upon the plaintiffs' appeal to this court. Beckmann v. Beckmann (Mo. App.) 51 S.W.(2d) 136. As concerns this case, suffice it to say that the ejectment suit had not been finally determined when the judgment herein was rendered on March 23, 1931.
The evidence disclosed that defendant was cutting and removing the sod, as alleged in the petition; that it was being sold to several different parties; that the sod had been removed from less than an acre of the land; and that defendant had refused to desist from such action when plaintiffs had made their demand upon him.
In its memorandum opinion the court observed that the manner or extent to which the cutting and removal of the sod would depreciate or affect the value of the land had not been shown; that defendant, in possession of the premises under the contract of sale, was to be regarded as the equitable owner of the same, and as such was not to be enjoined from acts in the nature of waste so long as the security of plaintiffs as vendors was not impaired or rendered insufficient thereby; and that there was no evidence that the cutting and removal of the sod would constitute waste which would impair or render plaintiffs' security insufficient.
The judgment was one dissolving the temporary injunction theretofore granted, and dismissing plaintiffs' petition; and following the refusal of the court to grant them a new trial, the plaintiffs have duly...
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