Burt v. Warren

• Decision Date: 10 April 1888
• Citation: 30 Mo.App. 332
• Parties: ROBERT F. BURT et al., Appellants, v. THOMAS H. WARREN, Respondent.
• Court: Missouri Court of Appeals

30 Mo.App. 332

ROBERT F. BURT et al., Appellants, v. THOMAS H. WARREN, Respondent.

Court of Appeals of Missouri, St. Louis.

April 10, 1888

APPEAL from the St. Louis Circuit Court, HON. LEROY B. VALLIANT Judge.

Affirmed.

W. B THOMPSON and MILLS & FLITCRAFT, for the appellants:

The provisions of the Revised Statutes entitle plaintiffs to the relief prayed for in this action if it appeared (1) that plaintiffs are in possession of the property in controversy (2) if the claim made by the defendant is adverse to the interest of the plaintiffs and constitutes a cloud upon the plaintiffs' title. And the only defence that can be made to this action is (1) defendant can disclaim all right and title adverse to the petitioners, and (2) if defendant claims an adverse title he must show by his answer why he should not be required to bring an action and try such title. Benoist v. Murrain, 47 Mo. 537; Bredell v. Alexander, 8 Mo.App. 110; Bedell v. Meade, 81 Mo. 297: Clark v. Ins. Co., 52 Mo. 276; Von Phul v. Penn, 31 Mo. 533; Rudderford v. Ullman, 42 Mo. 216; Beebe v. Phelps, 65 Mo. 27; Keane v. Kyne, 66 Mo. 216. Maston v. Grines, 88 Mo. 478, holds that any contract which renders the title suspicious in the minds of reasonable men and to any extent depreciates the value of the property, constitutes a cloud upon the title. Bredell v. Alexander, 8 Mo.App. 110.

CHRISTIAN & WIND, for the respondent:

The statute was never intended to apply to a case like the one at bar, for the reason that appellants can bring an action against respondent, but respondent cannot bring his action against appellants. Webb v. Donaldson, 60 Mo. 394; Benoist v. Murrain, 47 Mo. 537.

OPINION

ROMBAUER P. J.

This is an action instituted under section 3562, Revised Statutes, 1879, to quiet title. The petition states the necessary facts entitling the plaintiffs to relief under the statute. The defendant appeared and answered, admitting that the plaintiff was in possession, and claiming that defendant had an interest in the land arising out of the following facts: The plaintiff Burt and one Gardner, who is the grantor of plaintiff Wilson, entered into a contract with defendant, whereby they bound themselves to divide whatever amount above twenty-eight thousand five hundred dollars the land sold for; each agreeing not to dispose of the land without the consent of the other, under a penalty of ten thousand dollars, and this is all the interest defendant claims.

The defendant, further answering, stated that the plaintiff Burt had instituted an action against him in the circuit court of the United States for the eastern district of Missouri, to have such contract cancelled for fraud, which suit is now pending and undetermined.

Upon the trial of the case the defendant admitted that he had a claim against the real estate described in the petition by virtue of his contract set forth in the answer, and that said contract and claim did constitute a cloud on the title of plaintiffs, and was calculated to prevent, and did prevent, plaintiffs from making a sale of the same, and that said contract is the subject of litigation in the suit in the United States court, and plaintiff rested his case on such admission.

The defendant thereupon introduced in evidence the petition filed by plaintiff, in the United States circuit court, which sets out the contract in full, prays for an account, and for the cancellation of the contract for fraud, and the defendant rested.

This being all the evidence, the court rendered judgment in favor of the defendant.

We see no error in this. We are not called upon to decide how far the defendant's answer, which asserts an interest in the land, and the defendant's admission that such interest is a cloud upon the title, are borne out by the contract offered in evidence. Nor are we called upon to decide whether the pending action in the federal court is another action pending in the sense in which the pendency of one action abates the prosecution of another. It is sufficient for...