Bushman v. Bushman

Decision Date14 July 1925
Docket NumberNo. 24276.,24276.
PartiesBUSHMAN et ux. v. BUSHMAN.
CourtMissouri Supreme Court

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

Suit in equity by Christian P. Bushman and wife against Estelle P. Bushman and another. From an order overruling motion by the defendant named to set aside an order appointing a receiver, the defendant named appeals, under authority of Rev. St. 1919, 1469. Reversed, with directions.

Harry H. Haeussler and Chas. J. Macauley, both of St. Louis, for appellant.

N. Murry Edwards and McLaran & Garesche, all of St. Louis, for respondents Christian P. and Anna Bushman.

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, R. S. 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 10 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 No. 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 canceled, 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 Estelle Peper Bushman and others were defendants, which had been instituted by the trust company and others to partition the real property described in the plaintiffs' petition, except the house and lot, No. 4448, Washington avenue. Upon a sale of this land in the partition proceeding, Caroline J. Peper and Estelle Peper Bushman became the purchasers thereof and the court ordered a deed made to them for the same. By the terms of this deed, the special commissioner conveyed said property, except the house and lot, numbered 4448, Washington avenue, to Caroline J. Peper and Estelle Peper Bushman in proportions as follows: One-third to Caroline J. Peper; and two-thirds to Estelle Peper Bushman.

Caroline J. Peper is the common source of title to the real property here in controversy. Pullen v. Hart, 293 Mo. 614, 238 S. W. 437. She is in this record only by reason of that relation, as she died in August, 1920. To render subsequent relevant facts more easily understood an epitome of a portion of her history is pertinent. In her young womanhood she married one F. W. Bushman. In the after years she divorced him and the decree restored her maiden name. There were two sons, Clarence and Christian, and a daughter, Estelle, born of this marriage. The eldest son, now deceased, upon his mother's divorce, thereafter chose to take her family name of Peper, and the other son and the daughter were content to retain the name of their father. Christian Peper Bushman and his wife are the plaintiffs herein, and Estelle Peper Bushman and the minor, Christian Peper, son of Clarence, are the defendants. In short, this is a suit by a brother against a sister and a minor nephew to cancel two deeds made by the mother to the sister and a later deed made to the mother and sister by a special commissioner under the decree and order of the circuit court in the partition proceeding.

I. The vital question, an affirmative answer to which is necessary to sustain the action of the trial court, is, Did the facts authorize the appointment of a receiver? It is unnecessary to discuss, except in passing, the power of a court of equity to appoint a receiver. That power is inherent and in this jurisdiction has been given legislative sanction. Section 1449, R. S. 1919. The existence of the power, as we have frequently said, is neither absolute nor arbitrary. The propriety of its exercise is always subject to the review of the appellate court, and should not be upheld unless, from a consideration of all of the facts, it appears that the court's action was for the best interests of the parties. The extent of the appellate court's inquiry is the entire record. In thus bringing all of the facts under review to determine the merit of the appointment, the appellate court's power is more extended than in an ordinary appeal, in which the review is limited to the matters of error preserved in the motion for a new trial; the weight of the testimony of a substantial nature being left to the jury. Upon an appeal, as at bar, from a refusal of the trial court to vacate an order appointing a receiver, the discretion of the court in making the appointment will be scrutinized in the full light of all of the facts. Merriam v. Railroad, 136 Mo. 145, 36 S. W. 630; Haven v. Railroad, 155 Mo. loc. cit. 225, 55 S. W. 1035. What was said, in effect, by Ragland, J., speaking for the court in Comm. Fin. Corp. v. Mo. Motorbus Co. (Mo. Sup.) 233 S. W. loc. cit. 168, is pertinent in this connection as follows:

"In reviewing the action of the trial court, therefore, we should look to the same matters that were presented to it for consideration on the application for a receiver; namely, the petition, the return to the order to show cause, and the evidence submitted by the parties in the form of affidavits and depositions in support of their respective contentions."

This extended power of the appellate court in cases of this character is granted to enable a speedy ending to be made of an injudicious appointment, and thus prevent the hardships that might result from depriving parties of the possession of their property for long periods of time. State ex rel. Railroad v. Hirzel, 137 Mo. loc. cit. 445, 37 S. W. 921, 38 S. W. 961; St. L., etc., R. Co. v. Wear, 135 Mo. loc. cit. 259, 36 S. W. 357, 658, 33 L. R. A. 341. If it be found upon such an examination, therefore, that a trial court has exercised a wise judicial discretion for the promotion of justice, in the absence of any other adequate remedy, in the appointment of a receiver, its action should be approved; otherwise not. Price v. Bankers' Trust Co. (Mo. Sup.) 178 S. W. 745; Moore v. Bank (C. C.) 106 F. 579; Lemker v. Kalberlah, 105 Ill. App. 445; 4 Pomeroy Eq. Juris, (4th Ed.) § 1331.

In numerous adjudications it is held that proof must be clearly made of the concurrent existence of certain well-defined conditions to authorize the appointment of a receiver. These cardinal conditions are: (1) The deterioration or waste of the property; (2) the insolvency of the defendant; and (3) a reasonable probability that the plaintiff will prevail on the merits.

The reason for the proof of these conditions precedent to the exercise of the power is that it is purely auxiliary or provisional, and, as such, permits the possession and right of enjoyment of property to be transferred from the owner to a receiver before the decision of the case on the merits. State ex rel. Merriam v. Ross, 122 Mo. 435, 25 S. W. 947, 23 L. R. A. 534. This being the character of the power, its exercise involves, when it is sought to secure the appointment of a receiver for real property, a delicacy of discrimination and a degree of responsibility greater than that of any other conferred upon a court, and it should be exercised with caution, and only when it becomes a necessity. St. L. Nat. Bank v. Field, 156 Mo. loc. cit. 311, 56 S. W. 1095; Blades v. Billings Mer. Co., 154 Mo. App. 350, 134 S. W. 579. This is especially true in regard to real property, which, not being susceptible of destruction or removal, the necessity for a receiver therefor cannot be so urgent as in other cases. Kelly v. Steele, 9 Idaho, 141, 72 P. 887.

II. A brief review of the testimony on the part of the plaintiffs, introduced to sustain the allegation of their petition that the defendant has been guilty of such neglect and failure to repair the property as to result in its deterioration during the pending of the suit, is necessary to determine if that charge has been sustained. This testimony consisted of affidavits. The affiants were tenants of the property. Their testimony is as follows:

Palvogt stated that at and prior to the death of Caroline J. Peper, in August, 1920, the property needed repairs; that he made a request therefor prior to her death; that there was no material change for the worse in the condition of the property from the time of her death until the date of his affidavit.

Kohrman stated that he had occupied one of the buildings belonging to the defendant for over 35 years; that it is old but in no worse condition than it was in August, 1920.

Marecek stated that he had occupied one of the buildings since February, 1920; that the roof was defective when he went into possession. His testimony does not show a material change in the condition of the building between the date of the death of Caroline J. Peper and the date of his affidavit.

McKernan testified the conditions of the building he occupied were about the same as they were before August, 1920.

Marshall stated that the necessity for the repairs referred to by him were needed before Mrs. Peper's death.

This evidence does not sustain the charge. There was no proof of any neglect on the part of the defendant which might be held to cause...

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