Branham v. Peltzer

• Decision Date: 25 May 1915
• Docket Number: No. 17032.,17032.
• Citation: 177 S.W. 373
• Parties: BRANHAM et al. v. PELTZER et al.
• Court: Missouri Supreme Court

177 S.W. 373

BRANHAM et al. v. PELTZER et al.

No. 17032.

Supreme Court of Missouri, Division No. 2.

May 25, 1915.

Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge.

Action by Lawson M. Branham and others against Theodor C. Peltzer and others: Judgment for defendants, and plaintiffs appeal. Affirmed.

J. H. Bremermann and E. E. Bowers, both of Kansas City, for appellants. Milton Schwind, of Kansas City, for respondents.

WALKER, J.

Plaintiffs brought suit in the circuit court of Jackson county to set aside a deed made to one of the defendants, the Badger Lumber Company, to certain real estate therein described, and' that the defendant Theodor C. Peltzer be declared a trustee for the use of plaintiffs subject to incumbrances, and for damages for trespasses. Defendants filed separate demurrers to the petition, alleging that same did not state sufficient facts to constitute a cause of action. The demurrers were sustained, plaintiffs declined to plead further, and judgment was rendered for defendants, from which plaintiffs appealed.

The petition filed by plaintiffs alleges that the defendant the Badger Lumber Company, incorporated, is engaged in the general lumber business in Kansas City, Mo., and elsewhere; that on and prior to November 5, 1909, plaintiffs owned and occupied parts of lots 7 and 8 in Morris' subdivision in said city, therein fully described; that on November 5, 1909, the plaintiff Branham executed and delivered to defendant Peltzer a warranty deed to the property described, which was recorded in the records of Jackson county; that on the same day Peltzer and Branham entered into a written agreement, filed for record July 31, 1910, whereby Peltzer gave Branham an option for 90 days from November 5, 1909, to purchase said property for $24,000, subject to incumbrances of $15,000; that on October 16, 1907, said Branham conveyed, by warranty deed, to his coplaintiff Summet an undivided one-fourth interest in a part of said property fully described in said petition, the same not being filed for record until March 12, 1910; that on September 30, 1908, Branham conveyed to his coplaintiff Summet, by warranty deed, not filed for record until March 12, 1910, an undivided one-half interest in a part of said property, fully described in said petition; that the said option contract was continued in force by oral agreement for a consideration from time to time, but that Peltzer and wife, by warranty deed, recorded in March, 1911, purported and attempted to convey all the property described in said petition to the defendant the Badger Lumber Company for a consideration named of $32,000; that at the time of said last-mentioned conveyance plaintiffs had actual possession of said property that the Badger Lumber Company had actual knowledge and record notice of the possession of the plaintiffs and of their rights in the premises; that for 15 months or more the Badger Lumber Company had paid rent to Summet for a portion of said property; that just prior to...