Bushman v. Bushman

• Decision Date: 22 December 1925
• Docket Number: 24276
• Parties: CHRISTIAN PEPER BUSHMAN et ux. v. ESTELLE PEPER BUSHMAN, Appellant, and CHRISTIAN PEPER
• Court: Missouri Supreme Court

279 S.W. 122

311 Mo. 551

CHRISTIAN PEPER BUSHMAN et ux. v. ESTELLE PEPER BUSHMAN, Appellant, and CHRISTIAN PEPER

No. 24276

Supreme Court of Missouri

December 22, 1925

Appeal from St. Louis City Circuit Court; Hon. W. H Killoren, Judge.

Reversed and remanded (with directions).

Harry H. Haeussler and Chas. J. Macauley for appellant.

(1) The general rule is that a court of equity will not appoint a receiver to take charge of and manage real estate, or the proceeds thereof, in the possession of defendant holding under a regular title, pending the suit over the title thereto. Folk v. United States, 233 F. 183; Tardy's Smith on Receivers, p. 514, sec. 209; Ryder v. Bateman, 93 F. 28; Rollins v. Henry, 77 N.C 467; Schlecht's Appeal, 60 Pa. St. 175; Beach on Receivers, sec. 485; Vaus v. Woods, 46 Miss. 120; Mapes v. Scott, 4 Ill.App. 270; Kelly v Steele, 72 P. 887; Hoover v. Rhoads, 6 Iowa, 504; Corbin v. Thompson, 141 Ind. 129; Cecil v. Cecil, 223 S.W. 1094; 34 Cyc. Law & Procedure, 51. (2) To the general rule that a court of equity will not appoint a receiver to take charge of and manage real estate or the proceeds thereof pending suit there are exceptions; but for the plaintiff to bring his case within these exceptions, he must establish by clear proof: (a) that there is eminent danger that unless a receiver is appointed the property or its proceeds will be deteriorated in value or wasted during the pending of the suit; (b) that the defendant is insolvent; and (c) that on the pleadings and preliminary proofs there is a strong probability that plaintiff will ultimately recover on the merits. Folk v. United States, 233 F. 183; Tardy's Smith on Receivers, p. 514, sec. 209. (3) The plaintiffs failed to bring their case within the exceptions above mentioned, and therefore the trial court erred in appointing a receiver and in refusing to revoke its order appointing the receiver. (4) All of the presumptions of law are in favor of the party in possession under a legal title. And the burden of proof rests on plaintiffs to make out a clear case to entitle them to the appointment of a receiver pendente lite. Kelly v. Boetcher, 89 F. 128; Folk v. United States, 223 F. 183. (5) While courts of equity have the right and power in proper cases to appoint a receiver to take charge of and manage real estate pending the litigation over the title thereto, this power is not an arbitrary or absolute one, but one which can and should be exercised only when the facts in the case warrant the use of it. And the decision of the trial court is subject to review on appeal. Price v. Trust Co., 178 S.W. 750; 4 Pomeroy's Equity Jurisprudence (4 Ed.) sec. 1331; Lemker v. Kolberloch, 105 Ill.App. 445; Moore v. Bank, 106 F. 579. (6) On appeal from an order of the trial court in refusing to revoke the appointment of a receiver pending the suit, this court will review the entire record before the court, and determine therefrom whether there was any ground upon which the receiver should have been appointed, or upon which the court should have refused to revoke the appointment, as the case may be. Merrian v. Railroad, 136 Mo. 145; State ex rel. v. Hirzel, 137 Mo. 445. (7) Plaintiffs' petitions did not state facts sufficient to constitute a cause of action; nor were any of those petitions properly verified, and, therefore, the trial court erred in issuing an order to show cause and in overruling defendants' motion to set aside said order. High on Receivers, p. 719; Union Boom Co. v. Somish River Boom Co., 74 P. 54; Benepe-Owenhous Co. v. Scheidegger, 32 Mont. 430. (8) An heir has no better title to the land than his ancestor had at the time of his death, and in attacking a deed made by the ancestor in his lifetime the heir stands in the ancestor's shoes. Coulson v. Coulson, 180 Mo. 709. (9) A petition in an action grounded on fraud must state facts constituting the fraud. A mere allegation that the acts complained of were fraudulently done is not sufficient. The allegations in plaintiffs' petition were not sufficient to charge defendant with fraud in obtaining the Special Commissioner's deed in partition. Smith v. Sims, 77 Mo. 274; Williams v. Railroad, 112 Mo. 496; Nicholas v. Stevens, 123 Mo. 117; Lee v. Lee, 258 Mo. 599. (10) The allegation in plaintiffs' petition "that said Estelle Peper Bushman is insolvent," states only the pleaders' conclusion and is insufficient. Railroad Construction Co. v. Schack, 40 N. J. 226; Trust Co. v. Consolidated Electric Storage Co., 49 N. J. 402; Smith v. Sims, 77 Mo. 274. (11) Caroline J. Peper was a party defendant in the partition suit to partition the land in question. And the question of the validity of the deed dated January 14, 1911, from Caroline J. Peper to appellant, was determined in that suit and that question was, at the time this suit was filed, res judicata. Forder v. Davis, 38 Mo. 107; Hart v. Steedman, 98 Mo. 456; Smith v. Kiene, 231 Mo. 215; Ketchum v. Christian, 128 Mo. 38; Pentz v. Kuester, 41 Mo. 450.

N. Murry Edwards and McLaran & Garesche for respondents.

(1) "The court, or any judge thereof in vacation, shall have power to appoint a receiver, whenever such appointment shall be deemed necessary, whose duty it shall be to keep and preserve any money . . . and to keep and preserve all property . . . pending any legal or equitable proceeding concerning the same." Sec. 1449, R. S. 1919. (2) The appointment under the provisions of Sec. 1449, R. S. 1919 (Sec. 753, R. S. 1899), is addressed to the sound discretion of the circuit court . . . and is rightfully exercised whenever it reasonably appears that the preservation of the property involved in the suit, or the securing and preserving its rents and profits (if real estate), will be jeopardized if a receiver be not appointed. Stark v. Grimes, 88 Mo.App. 413. (3) The statutory words "whenever such appointment shall be deemed necessary" vest in a circuit judge a discretion in such behalf so broad as only to be a matter of review by an appellate court in case of palpable abuse. Abramsky v. Abramsky, 261 Mo. 117; Commonwealth Finance Co. v. Mo. Motor Bus Co., 233 S.W. 168; Stark v. Grimes, 88 Mo.App. 409; State v. Ittner, 263 S.W. 163. (4) But the circuit court, independent of Sec. 1449, R. S. 1919, had authority to appoint a receiver. The section referred to does not shorten the arm of a court of equity, since no words of preclusion are used in that section. Cox v. Volkert, 86 Mo. 511; Greeley v. Provident Sav. Bk., 103 Mo. 222; Miller v. Perkins, 154 Mo. 637; Commonwealth Finance Corp. v. Mo. Motor Bus Co., 233 S.W. 168. (5) Where the party in possession is guilty of careless management, or wantonness, or where by reason of improper care and attention from anyone the property is liable to be lost or damaged from any cause, the court in the exercise of its undoubted right will by its receiver take the property into possession and preserve the same until such time as the rights of the litigants are determined. 1 Tardy's Smith on Receivers, p. 30. (6) The only question involved herein goes to the correctness of the court's action in appointing a receiver. While the appeal involves incidentally the goodness on demurrer of the plaintiff's petition, demurrability is but adventitious, since no appeal lies in the middle of a case from the holding good of a petition on demurrer without final judgment. Abramsky v. Abramsky, 261 Mo. 125. (7) Under the law of this State respondent's petition need not have been verified at all. Fisher v. Patton, 134 Mo. 32, 54. (8) Plaintiff's petition is not alone grounded upon fraud, but is grounded as well upon mental incapacity and undue influence arisig out of a fiduciary business relationship shown by the allegations of the petition to have existed. The allegations of plaintiff's petition as to fraud are sufficient in that the matters and facts constituting fraud have been pleaded. Lee v. Lee, 258 Mo. 599; Canty v. Halpin, 242 S.W. 102. (9) On appeal from an order of the trial court appointing a receiver and refusing to vacate and revoke said order on motion of defendant, this court will not consider the merits of the cause, but merely the propriety of appointing a receiver. Commonwealth Finance Corp. v. Motor Bus Co., 233 S.W. 168.

OPINION

Walker, P. J.

This is a suit in equity brought in the Circuit Court of the City of St. Louis by the plaintiffs against the defendants to set aside certain deeds and that a receiver pendente lite be appointed, and for such other orders, etc., as to the court may seem just.

The circuit court appointed a receiver as prayed and he qualified and entered upon the discharge of his duties as such. Upon this appointment a motion was filed by the defendant Estelle Peper Bushman, to vacate and set aside the court's order, which being overruled, an appeal, under the authority of Section 1469, Revised Statutes 1919, was perfected by her to this court.

Two of the deeds in controversy were executed by Caroline J. Peper to Estelle Peper Bushman; one was dated January 14, 1911, and conveyed the grantor's undivided eleven-sixtieths interests in ten parcels of improved real estate in the city of St. Louis, particularly described in plaintiffs' petition; the other deed was dated April 9, 1920, and conveyed a house and lot, known as Number 4448 Washington Avenue, in the city of St. Louis, which property is also conveyed by Caroline J. Peper to Estelle Peper Bushman in the tenth subdivision of the real estate described in the plaintiffs' petition.

The third deed, dated June 1, 1917, sought to be cancelled was executed by Charles C. Collins, as a special commissioner of the Circuit Court of the City of St. Louis, in a partition suit wherein the St. Louis Trust Company et al. were plaintiffs, and Caroline J. Peper and ...