Coffman v. Gates

• Decision Date: 19 October 1909
• Citation: 121 S.W. 1078,142 Mo. App. 648
• Parties: COFFMAN et al. v. GATES et al.
• Court: Missouri Court of Appeals

121 S.W. 1078

142 Mo. App. 648

COFFMAN et al. v. GATES et al.

St. Louis Court of Appeals. Missouri.

October 19, 1909.

1. PARTITION (§ 39)—SUIT IN EQUITY—JURISDICTION.

A partition suit which deals with equitable estates and interests is in equity, and a court of chancery has jurisdiction over it notwithstanding the statutory remedy in partition.

2. EQUITY (§ 230)—PLEADING—DEMURRER.

A demurrer to an amended answer and cross-bill in a suit in equity, which does not raise a question against the sufficiency of the pleadings, but which alleges new matter in pais, is improper.

3. APPEAL AND ERROR (§ 1195)—LAW OF THE CASE.

The decision on appeal that the circuit court in partition in equity has jurisdiction to reimburse one holding an interest in the land in fee and the remainder in trust for expenses incurred in defending an action in ejectment determines his right to reimbursement, and a pleading after amendment demanding reimbursement in a larger sum is not demurrable.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Petition by Ella Gates Coffman and others against John J. Gates and others for partition, in which James C. Ghio files a cross-bill. From a judgment for James C. Ghio on his cross-bill defendants Mary E. Layton and others appeal. Affirmed.

Geo. E. Smith, for appellants. W. B. & Ford W. Thompson, for respondents.

GOODE, J.

This case was here on appeal before, and the report of the decision is in 110 Mo. App. 475, 85 S. W. 657, where a full statement of the intricate facts out of which the controversy grew will be found. To make our present decision intelligible, it is necessary to restate the case in part. John B. Ghio died in 1885, leaving a will wherein he devised and bequeathed his property to three executors and trustees, namely, his widow, Elizabeth, his son James C., this respondent, and William Booth. The will is not before us, but from statements in the briefs and recitals in the record it appears said executors had power to lend the funds of the estate, and lent $10,000 to Jacob and Lavina Gates, taking notes from the borrowers secured by a deed of trust on a tract of land in St. Louis county known as the "Gates farm." There was also a residuary bequest (we suppose after paying debts and specific legacies) to said executors as trustees, with the direction to divide the residue of the estate into three equal portions, of which one part should be turned over to James C. Ghio, one-third be held for Mary X. Barada, wife of Francis X. Barada, for her life and then to go to her children in fee, and one-third be held for Mary O. Cummisky. The portions of said Mary Barada and Mary Cummisky were bequeathed to the trustees for certain uses set forth in the will. The Gates loan of $10,000 was part of the residue of the estate, and hence was subject to the trusts declared in the will. The loan made to the Gateses by the executors and trustees was not paid, and there was a foreclosure under the deed of trust. By agreement of the parties in interest, James C. Ghio, one of the three residuary legatees under the will, was appointed to purchase the property at the foreclosure sale, to take and hold as provided in the will of his father, to wit, an undivided one-third of the property so purchased in fee, and the other undivided two-thirds in trust, one-third for Mary Barada and her children, and one-third for Mary Cummisky. He made the purchase at the foreclosure sale, and the trustee in the deed of trust executed a conveyance to him, setting out the capacity in which he bought and took title to the land. The interests of Mary Barada and her children and of Mary Cummisky were subject to sale and conveyance only by the trustees named in John B. Ghio's will and according to its provisions. James C. Ghio took possession of the land thus purchased, and collected the rents and profits for himself as one of the parties in interest and as trustee for Mary Barada and Mary Cummisky, the other parties. Subsequently Mary Barada died, and her children inherited her interest. While James C. Ghio was in possession on these terms, actions of ejectment were instituted against him by the children and heirs of one John Gates, deceased. There was a great deal of litigation between said Gates heirs and Ghio. He succeeded in defeating some of the actions instituted by them, but one ejectment suit was successful to the extent that Ella Gates, daughter of John Gates, recovered an undivided eleven-sixteenths of the land and $2,165 damages for its detention and $35 for the monthly rents and profits. Said ejectment action was instituted against...