Cadematori v. Gauger

• Citation: 61 S.W. 195,160 Mo. 352
• Parties: CADEMATORI v. GAUGER et al.
• Decision Date: 12 February 1901
• Court: United States State Supreme Court of Missouri

61 S.W. 195

160 Mo. 352

CADEMATORI v. GAUGER et al.

Supreme Court of Missouri, Division No. 2.

February 12, 1901.

HUSBAND AND WIFE—WIFE'S EQUITABLE ESTATE —DEED—CONSTRUCTION—CONVEYANCE —HUSBAND'S ASSENT — ESTOPPEL — HEIRS— DISTRIBUTIVE SHARE—ACCEPTANCE—PLEADING.

1. Land was conveyed by a husband to one who conveyed it in trust for the sole use of the wife of the first grantor. The wife and the trustee conveyed the property to two of her daughters, in which deed the husband did not join. Held, that the wife had a separate equitable estate in the land, which she could convey without the assent of her husband, and the deed to the daughters passed the fee.

2. Where a grantee of land died intestate, and her half interest therein was sold by her administrator, plaintiff, who was one of her heirs at law, by receiving from and receipting to his administrator for his distributive share of the estate, is estopped from asserting title to the land conveyed by the administrator's deed.

3. Where the allegations in an answer amount to an estoppel, though it does not plead estoppel in so many words, it is sufficient.

Appeal from St. Louis circuit court; H. D. Wood, Judge.

Ejectment by John Cadematori against Charles G. Stifel, continued after his death against Louis F. Gauger and others, trustees under the will of deceased. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

John M. Dickson, for appellant. Kehr & Tittmann and J. M. Holmes, for respondent.

BURGESS, J.

This is an action of ejectment for the possession of a lot of ground in the city of St. Louis which is known in this litigation as the "Espenschied Lot." Defendant recovered judgment in the court below, and the plaintiff appeals. The suit was originally against Charles G. Stifel, but since the appeal to this court he died, and on the 16th day of October, 1900, the suit was revived against the present defendants, Louis F. Gauger, Otto F. Stifel, and Edwin H. Conrade, trustees under the will of said Charles G. Stifel, deceased.

The petition is in the usual form in such cases. The answer, after a general denial, proceeds as follows: "Defendant says that the premises in said petition mentioned were conveyed by James Signaigo and Margaret, his wife, by deed dated April 19, 1861, and recorded in the recorder's office in the city of St. Louis in Book 252, page 166, to Joseph Jecko, as trustee, for the sole and separate use of Paulo Cadematori, mother of plaintiff, and of her heirs; that by the terms of the said conveyance the said Jecko was authorized and empowered to convey the said premises upon the written request of the said Paulo Cadematori, with the consent of her husband, Dominic Cadematori; that thereafter, to wit, on the 4th day of September, 1880, the said Dominic Cadematori, being then a resident of the kingdom of Italy, executed and delivered to the said Paulo Cadematori a power of attorney, authorizing her, the said Paulo, to act for him, the said Dominic, in any manner that she might see fit, as his attorney in fact, in, about, and concerning all of his rights, interests, and property of every description in the United States of America, which power of attorney is duly recorded in the recorder's office of the city of St. Louis in Book 774, page 552; that thereafter, to wit, on the 30th day of January, 1886, the said Joseph Jecko, for both a good and a valuable consideration to the said Paulo Cadematori moving, at the written request of the said Paulo, and with the consent of the said Dominic Cadematori, as evidenced by their joining in the conveyances, the said Paulo in person and the said Dominic by the said Paulo as his attorney in fact, conveyed the said premises to Angela and Theresa Cadematori, daughters of the said Paulo and sisters of plaintiff, which deed is recorded in the records of the city of St. Louis in Book 775, page 485. Further answering, defendant says that, if the plaintiff has any title whatever to the premises in the petition described, he derives the same by virtue of the statute of descents and distributions from Angela Cadematori and Paulo Cadematori; that Angela Cadematori, being as aforesaid seised of an undivided one-half interest in the premises described, died unmarried, without issue, and intestate, leaving as her sole heirs two sisters and two brothers, of whom plaintiff was one; that administration was duly had upon the estate of the said Angela Cadematori, and, the personal property being insufficient for the payment of the debts allowed, the administrator was duly ordered by the St. Louis probate court to sell the real property to the said estate belonging, to wit, the undivided one-half of the premises in the petition described, for the payment of debts; that in pursuance of said order the said administrator did, on Monday, the 23d day of November, 1891, sell the said property at public vendue in accordance with the terms of said order, having first advertised the time, terms, and place of said sale by a notice published in the Star Sayings, a newspaper published in the city of St. Louis, Missouri, which notice was first published on the 26th day of October, 1891, and was published once a week thereafter, the last publication being on the 16th day of November, 1891; that at said sale the said property was bought by F. F. Espenschied at and for the price and sum of twelve hundred and twenty-eight dollars and fifty cents ($1,228.50), which sum was, to wit, on the said 23d day of November, 1891, duly paid by the said Espenschied to the said administrator, and the said sale was duly approved by the said St. Louis probate court; that all of the sum so received by the said administrator for the said premises was used by him in the payment of debts allowed against the said estate, save the sum of two hundred and eighty-four dollars ($284.00), which sum was, upon the final settlement of said estate, distributed equally, in accordance with the orders of the probate court, between the four heirs of the said Angela Cadematori, including plaintiff, and was paid to them by the said administrator, and was received by them. Defendant further states that the said Espenschied sold and conveyed the said premises to the defendant for a consideration in excess of said sum of twelve hundred and twenty-eight dollars, and that this defendant and the said Espenschied have, since said 23d November, 1891, annually paid taxes upon the said property, to the amount of three hundred dollars. Defendant further states that, if there was any defect in the conveyance of said premises to the said Angela and Theresa Cadematori, whereby the legal title thereof failed to pass to the said Angela and Theresa, yet the said conveyance operated to transfer to the grantees therein the beneficial ownership in the said premises; and by reason of the facts hereinbefore stated plaintiff is not entitled in equity to enforce, as against defendant, his legal title, if any he has. Defendant further states that if there was any defect in the proceedings whereby said premises were sold to the said Espenschied by the administrator of said Angela Cadematori, by reason whereof said Espenschied failed to acquire the legal title to said premises, yet by reason of the premises the defendant has an equitable defense and offset to this action to the extent of the purchase money so paid the said Espenschied, together with interest thereon, and to the extent of the taxes so paid by said Espenschied and by defendant, together with interest thereon, which offset amounts in the aggregate to the sum of eighteen hundred dollars ($1,800); and defendant prays that plaintiff be ordered to pay said amount to defendant before any judgment for the possession of said premises shall be rendered in his favor; and defendant also prays for such other and further relief as he may be entitled to in the premises."

The facts are about as follows: Dominic Cadematori, being the owner of two lots in the city of St. Louis,—the one in controversy here, known as the "Espenschied Lot," and another known as the "Crone Lot,"—conveyed the Espenschied lot to one Signaigo, and the Crone lot to Henry N. Hart. Signaigo and Hart conveyed both lots to Jecko, as trustee of Paulo Cadematori, wife of Dominic. Paulo conveyed the Espenschied lot to her two daughters, Theresa and Angela. Theresa conveyed her half interest to Espenschied. Angela died, and her half interest was sold by her administrator under an order of the probate court, Espenschied being the purchaser. Espenschied conveyed the lot to respondent. Dominic Cadematori died before his wife, but after the execution of her deed to her two daughters. Paulo died, leaving, in addition to the two daughters to whom she had made the conveyance above referred to, three children, the plaintiff being one of them. Plaintiff brought ejectment for both the Espenschied and Crone lots, and the two cases were tried together.

In these two cases the following facts are admitted: "First. The properties in issue originally belonged to Dominic Cadematori. Second. Dominic Cadematori and Paulo, his wife, joined in conveyances of the properties, so that by mesne conveyances the title to both pieces of property became vested in Joseph Jecko, as trustee for Paulo Cadematori, wife of Dominic Cadematori; in the Stifel case the conveyance being herewith filed, and marked `Exhibit A,' and in the Crone case the conveyance being herewith filed, and marked `Exhibit B.' The property was conveyed by Cadematori and his wife in the Stifel lot to Signaigo, and in the Crone lot to Hy. N. Hart, who in turn conveyed both to Joseph Jecko, as trustee. Third. Dominic...