Campbell v. Webb

• Decision Date: 21 April 1947
• Docket Number: 39977
• Parties: Charles E. Campbell, Emma Wyatt, William F. Harra, Julia S. Cox, Amos Harra, Elizabeth Latimer, Raymond Harra, Frances Harra, Burl Johnson, Frank L. Harra, Nettie Harra, Augusta Harra Lawrence v. Lula Webb, Administratrix of the Estate of Lewis S. Webb, Deceased, Appellant
• Court: Missouri Supreme Court

202 S.W.2d 35

356 Mo. 466

Charles E. Campbell, Emma Wyatt, William F. Harra, Julia S. Cox, Amos Harra, Elizabeth Latimer, Raymond Harra, Frances Harra, Burl Johnson, Frank L. Harra, Nettie Harra, Augusta Harra Lawrence v. Lula Webb, Administratrix of the Estate of Lewis S. Webb, Deceased, Appellant

No. 39977

Supreme Court of Missouri

April 21, 1947

Rehearing Denied May 12, 1947.

Appeal from Jackson Circuit Court; Hon. John R. James Judge.

Reversed and remanded.

David H. Bresler, Henry Riederer and White & Hall for appellant.

(1) As between the parties the conveyance was effective October 9 1935, and fixed the beginning of the five year term. State v. Sutterfield, 176 S.W.2d 666, 237 Mo.App. 562; Hernandez v. Prieto, 162 S.W.2d 829, 349 Mo. 658; Schmidt v. City of Tipton, 89 S.W.2d 569; Allen v. DeGroodt, 16 S.W. 494, 105 Mo. 442; Kansas City v. K.C. Terminal Railroad, 23 S.W.2d 1006, 324 Mo. 461. (2) Plaintiffs' pleadings estop them to deny that the conveyance was made October 9, 1935, and that the five year term began on that date. State ex rel. Boatmen's Bank v. Webster Groves, 37 S.W.2d 905, 327 Mo. 594; Morrison v. Painter, 170 S.W.2d 965; Wrench v. Robertson, 175 S.W. 587; City of St. Louis v. United Rys. Co., 174 S.W. 78, 263 Mo. 387. (3) The limitations in the conveyances should be strictly construed against the grantors. Kitchen v. Hawley, 131 S.W. 142, 150 Mo.App. 497; University City v. Chicago, R.I. & P. Ry. Co., 149 S.W.2d 321, 347 Mo. 814; Shaver v. Pantler, 127 Mo.App. 433, 105 S.W. 668. (4) The court erred in permitting plaintiffs to sue and recover as a class. Niehaus v. Joseph Greenspon's Sons Pipe Corp., 164 S.W.2d 180, 237 Mo.App. 112; Rockwood v. Crown Lindy Co., 178 S.W.2d 440, 350 Mo. 561; Milk Drivers Union v. Associated Milk Dealers, 42 F.Supp. 584; Johnson v. Beneficial Loan Co., 34 F.Supp. 392; Oppenheimer v. Young, 3 Fed. Rules Dec. 220; Jackson v. Union Pac. Railroad, 4 F.R.D. 172. (5) The court erred in permitting recovery for plaintiffs whose claims were barred by the statute of limitations and for parties who were deceased. Sec. 182, R.S. 1939; Johnson v. Frank, 191 S.W.2d 618; State ex rel. Dean v. Daues, 321 Mo. 1126, 14 S.W.2d 990; Laws 1943, p. 364; Webster v. Joplin Water Works, 177 S.W.2d 447, 352 Mo. 327. (6) The court erred in permitting plaintiffs to amend their petition at the close of the evidence which constituted a departure. Jacobs v. Chicago, P. & St. L. Railroad, 204 S.W. 954; Shern v. Sims, 258 S.W. 1029; Sinclair Ref. Co. v. Wyatt, 149 S.W.2d 353, 347 Mo. 862; Prichard v. Dubinsky, 338 Mo. 360, 89 S.W.2d 530. (7) The court erred in failing to take into account the expenses of the sale and the sum paid to the tenant.

Olney Burrus, Rufus Burrus and Donald W. Johnson for respondents.

(1) The court did not err in directing a verdict for plaintiffs and refusing to direct a verdict for defendant. Sandy Hites Co. v. State Highway Comm., 347 Mo. 954, 149 S.W.2d 828; State ex rel. Prudential Ins. Co. v. Bland, 353 Mo. 956, 185 S.W.2d 654; John Deere Plow Co. v. Cooper, 230 Mo.App. 167, 91 S.W.2d 145; Inter-Southern Life Ins. Co., v. Zerrell, 58 F.2d 135. (2) As between the parties, the conveyance was not effective October 9, 1935, and did not fix the beginning of the five-year term. Authorities under Point (1), supra. (3) Plaintiffs' pleadings did not estop them to deny that the conveyance was made October 9, 1935, and that the five-year term began on that date. St. Joseph & St. Louis Railroad Co. v. St. Louis, I.M. & S. Ry. Co., 135 Mo. 173, 36 S.W. 602; Wayne Tank & Pump Co. v. Quick-Serv. Laundry Co., 285 S.W. 750; D'Oench v. Gillioz, 346 Mo. 179, 139 S.W.2d 921; 49 C.J. 125. (4) The rule that restrictions and limitations are strictly construed against the grantor is not applicable in this case. Reynolds v. Reynolds, 234 Mo. 144, 136 S.W. 411; Waldermeyer v. Loebig, 222 Mo. 540, 121 S.W. 75; White v. Reading, 293 Mo. 347, 239 S.W. 90; Kitchen v. Hawley, 131 S.W. 142; University City v. Chicago, R.I. & P. Railroad Co., 347 Mo. 814, 149 S.W.2d 321. (5) The court did not err in permitting plaintiffs to sue and recover as a class. Lilly v. Tobbein, 103 Mo. 477, 15 S.W. 618; Citizens Banking Co., v. Monticello State Bank, 143 F.2d 261; Sec. 847.19, R.S. 1939; 2 Moore's Fed. Practice, pp. 2224, 2225; Caldwell v. Eubanks, 326 Mo. 185, 30 S.W.2d 976; State ex rel. Bowling Green Trust Co. v. Barnett, 245 Mo. 99, 149 S.W. 311; Musgrove v. Bank, 187 Mo.App. 483, 174 S.W. 171. (6) The judgment was not erroneous as including claims barred by the statute of limitations. This suit in pursuit of funds coming into the hands of appellant's decedent is one in equity, and the question whether the heirs other than the plaintiffs presented and filed claims therefor in the probate court is of no consequence, and their failure so to do is no bar to recovery thereon in this action. Orr v. St. Louis Union Trust Co., 291 Mo. 385, 236 S.W. 642; Cunningham v. Kinnerk, 230 Mo.App. 749, 74 S.W.2d 1107; Authorities under Point (2), supra. (7) The revival of the suit after the death of Webb was for the benefit, not alone of the plaintiffs joining therein, but for all heirs interested. Dietrich v. Loney's Estate, 169 Wis. 469, 172 N.W. 229; Deckert v. Independence Shares Corp., 39 F.Supp. 592; York v. Guaranty Trust Co. of New York, 143 F.2d 503; 1945 Pocket Supplement to Moore's Fed. Prac., Vol. 2, p. 123. (8) The court did not err in permitting the plaintiffs to amend their petition at the close of the evidence. Jensen v. Hinderks, 338 Mo. 459, 92 S.W.2d 108; Sonnenfeld v. Rosenthal, 247 Mo. 238, 152 S.W. 321; Clarkson v. Lee, 133 Mo.App. 53, 113 S.W. 724; City of Farmington v. Telephone Co., 135 Mo.App. 697, 116 S.W. 485. (9) The judgment is not erroneous as a matter of law. Lilly v. Tobbein, 103 Mo. 477, 15 S.W. 618.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Action for damages for breach of a written contract. At the close of all the evidence, the court directed a verdict for plaintiffs in the sum of $ 48,392.00. Defendant has appealed.

The contract was dated October 9, 1935, and concerned the handling and sale of a 352 acre farm in Jackson County. The contract was entered into between certain heirs of Frank Harra, deceased, and Lewis S. Webb. At the time of Frank Harra's death (prior to October 9, 1935), the real estate was subject to a deed of trust securing notes for a total of $ 25,600.00 and certain delinquent taxes. The heirs were unable to refinance the indebtedness or sell the property. It was conveyed to Webb under the terms of the contract, which provided that Webb was to take possession, collect rents and profits, refinance or pay the incumbrance, pay taxes and interest and give the first parties five years "from the conveyance" to find a purchaser. If a purchaser was found, Webb was to convey to him and pay the first parties the amount obtained, less the amount of the incumbrance. If no purchaser was found, Webb was to own the property absolutely "at the expiration of said five year period."

The contract recited that "the parties of the first part have conveyed to the party of the second part by deed of warranty . . . vesting the full and legal title thereto in the party of the second part . . . upon the following terms and conditions." The detailed terms and conditions included section seven as follows: ". . . the conveyance of said real estate by parties of the first part and the terms of this contract shall not be finally and fully effective until the party of the second part shall have received by proper guardian's deed of conveyance the undivided interest of any infant or infants of, in, and to, the real estate hereinbefore described." (Italics ours.) Webb signed and acknowledged the contract on October 14, 1935.

The same twenty seven persons who signed the contract as first parties executed and delivered the deed to Webb. The deed was dated October 9, 1935, and purported to convey all of the "several undivided rights, titles, and interest" of the grantors "in and to" the real estate described, "subject to all taxes and incumbrances of record." Respondents point to the recitals in the contract and say this deed conveyed the "full . . . title" to Webb, while appellant says the deed was only signed by twenty seven of the thirty one heirs of Frank Harra, deceased. In any event, Webb subsequently obtained quit claim deeds from Fred C. Harra, Clara Harra, his wife, and Maxie B. Harra, and a guardian's deed, dated February 17, 1936, purporting to convey the 1/256 interest of Arthur Morgan Balston, Jr., a minor, pursuant to the sale of the minor's interest to Webb on January 24, 1935.

The deed, dated October 9, 1935, (hereinafter sometimes referred to as the conveyance), was acknowledged by the several grantors (heirs) between October 9 and December 31, 1935. The contract and deed forms were prepared by an attorney for Webb and were delivered to him, but there is no evidence as to when the contract was finally executed or when the deed was delivered. The deed was recorded February 3, 1936.

Webb took possession of the real estate, made payments on the indebtedness and refinanced or extended the balance. Thereafter, on October 12, 1940, he signed an option to one Warner. The option had been requested on Monday, October 7, 1940, but Webb said the property was tied up under contract with the heirs until Wednesday or Thursday. He, therefore, delayed signing the option until Saturday. The option expired December 1, 1940. On December 11, 1940, Webb sold the property to the United States Government for $ 62,400.00. The deed was delivered and payment made January 28, 1941.

The present action was instituted on November 12, 1941 by twelve of the parties signing the contract with...