Curry v. Crull

• Decision Date: 03 May 1938
• Docket Number: 34986
• Citation: 116 S.W.2d 125,342 Mo. 553
• Parties: L. F. P. Curry v. William L. Crull, Edith Crull, Russell Crull, Samuel O. Smith, Anna A. Smith, Blair L. Dobson, Mabel Dobson, Walter Sumner, Grace May Sumner, Ammon B. Thomas, Hazel Thomas, Carl Thomas, Elena Thomas, Herman Schmidtgall, Rachel Schmidtgall, H. Allen Lafferty, Ruth Lafferty, and Jackson County, Appellants
• Court: Missouri Supreme Court

116 S.W.2d 125

342 Mo. 553

L. F. P. Curry v. William L. Crull, Edith Crull, Russell Crull, Samuel O. Smith, Anna A. Smith, Blair L. Dobson, Mabel Dobson, Walter Sumner, Grace May Sumner, Ammon B. Thomas, Hazel Thomas, Carl Thomas, Elena Thomas, Herman Schmidtgall, Rachel Schmidtgall, H. Allen Lafferty, Ruth Lafferty, and Jackson County, Appellants

No. 34986

Supreme Court of Missouri

May 3, 1938

Appeal from Jackson Circuit Court; Hon. Marion D. Waltner Judge.

Affirmed.

Benj. R. McGuire and David B. Logsdon for appellant.

(1) The court erred in failing to dismisss plaintiff's petition and in finding in favor of the plaintiff for the reason that plaintiff's petition does not state a cause of action and therefore there was no issue before the court; the petition in this cause being totally defective. Wolf v. Schulz Folding Box Co., 44 S.W.2d 866; Harger v Barrett, 319 Mo. 633, 5 S.W.2d 1100; Powell Lbr. Co v. Dalton, 185 S.W. 530. (2) The court erred in refusing to sustain defendant's demurrer at the close of plaintiff's case, and in further refusing to sustain plaintiff's demurrer to the evidence at the conclusion of the entire case, for the reason that under the pleadings and the evidence, judgment should have been for the defendants. Barrie v. Ranson, 46 S.W.2d 186; Barlow v. Scott, 85 S.W.2d 504. (3) The court erred in refusing to sustain defendants' motion for a new trial, for the reason that under the petition in said cause there is no allegation in plaintiff's petition that the lands involved were under the jurisdiction of the Circuit Court of Jackson County, Missouri. Barrie v. Ranson, 46 S.W.2d 186. (4) The court erred in refusing to sustain defendant's motion to dismiss this action, for the reason that plaintiff testified that he was not the real party in interest and, therefore, was not entitled to prosecute this action. Methodist Episcopal Church of U. S. A. v. Walter, 50 F.2d 416; Proctor v. Board of Trustees, 225 Mo. 51; Tucker v. Diocese of West Mo., 264 S.W. 897. (5) The court erred in refusing to dismiss plaintiff's action on motion of the defendants for the reason that plaintiff testified that he was acting, in fact, for an unincorporated religious association, which association is prohibited by the Constitution of the State of Missouri, to hold title to real estate excepting for churches, cemeteries and parsonages. Therefore, the court will not aid such an association in doing something by artificial means, through an agent, that which it is prohibited by law to do itself. Methodist Episcopal Church of U. S. A. v. Walter, 50 F.2d 416; Proctor v. Board of Trustees, 225 Mo. 51; Prairie Slough Fishing & Hunting Club v. Kessler, 252 Mo. 424. (6) The judgment in the cause does not follow the verdict and findings of fact by the court in that in Count 1 the verdict of the court named only a certain portion of the defendants against whom the plaintiff was entitled to be given a judgment, and in the second count the findings of fact and verdict of the court was that plaintiff was entitled to judgment against certain named defendants and the judgment decree as to both counts does not follow the verdict and findings of the court. (7) The court erred in finding his verdict and judgment in favor of the plaintiff, for the reason that under all of the evidence of the case there was no showing that plaintiff was the owner of any section of the land to which an alleged accretion might be shown with the exception of two small tracts in Section 24, and even if the evidence was sufficient to show title by accretion, it could only affect title to land owned by plaintiff adjacent to and north of that land to which he had title. Wheeler v. Reynolds Land Co., 193 Mo. 279; Brummiel v. Harris, 148 Mo. 430; Barlow v. Scott, 85 S.W.2d 504; Franklin v. Haynes, 139 Mo. 311. (8) The judgment in the cause is irregular, uncertain and void in that it does not make final and complete disposition against all of the defendants named in plaintiff's petition, and is so uncertain that it cannot be determined what rights have been adjudicated. State ex rel. Dunklin County v. Blackemore, 275 Mo. 205; McCords v. McCord, 77 Mo. 166; Spalding v. Citizens Bank, 78 Mo.App. 374; Franklin v. Haynes, 139 Mo. 311; Benne v. Miller, 149 Mo. 228.

Arthur B. Taylor and R. Burns Strader for respondent.

(1) The petition in this cause is not defective for the reason it was amended before final judgment by setting out the county and state in which the land in controversy is situated, and for the further reason the description by section, township and range is sufficient. Furthermore, the petition following the provisions of statute, Section 1520, Revised Statutes 1929, is a sufficient statement of plaintiff's cause of action. Myher v. Myher, 224 Mo. 631; Smith v. Black, 231 Mo. 281; Sec. 1520, R. S. 1929; Huff v. Laclede Land & Imp. Co., 157 Mo. 65; Stillman v. Clardy, 256 Mo. 297; Wolf v. Schulz Folding Box Co., 44 S.W.2d 866. (2) There was no error on the part of the court in refusing to sustain defendants' demurrer at the close of plaintiff's case nor in refusing to sustain defendants' demurrer at the close of the entire case. Doebbeling v. Hall, 310 Mo. 204; Dumm v. Cole County, 315 Mo. 568; State ex inf. Mansur v. Huffman, 2 S.W.2d 582; Benne v. Miller, 149 Mo. 228; Hartman v. Owens, 293 Mo. 508; Ashton v. Penfield, 233 Mo. 391; Baxter v. St. Louis Transfer Co., 198 Mo. 1. (3) There was no error on the part of the court in refusing to sustain defendants' motion for a new trial. Burkham v. Manewal, 195 Mo. 500; Koehler v. Rowland, 275 Mo. 573. (4) Plaintiff as trustee may hold the land in trust for the benefit of the voluntary, unincorporated, religious association even though the trust be not evidenced in writing. There is no provision either in the Constitution nor by way of legslative enactment which prohibits a voluntary, unincorporated, religious association from holding title to real estate through the medium of a trustee. Thierry v. Thierry, 249 S.W. 946; 54 C. J., p. 49; Sec. 699, R. S. 1929. (5) There was no error on the part of the trial court in refusing to dismiss plaintiff's action when it appeared that the title to the real estate was held by the plaintiff for the benefit of an unincorporated, voluntary, religious association, as such associations are not prohibited by the Constitution nor by the statutes of the State to hold title to real estate through the medium of a trustee. Lilly v. Tobbein, 103 Mo. 477; Society of the Helpers of the Holy Souls v. Law, 267 Mo. 667; Harger v. Barrett, 5 S.W.2d 1100. (6) The judgment of the trial court nunc pro tunc supplies the names of all defendants both in Count 1 and in Count 2 so that in the judgment of the court none of the defendants stands omitted. Adair v. K. C. Term. Ry. Co., 220 S.W. 920; Stotler v. Railroad Co., 200 Mo. 107. (7) It is no error on the part of the trial court in finding a verdict and judgment in favor of plaintiff for the reason the evidence clearly showed that plaintiff was the owner and in possession of all of the land in Section 24 south of the old 1915 river bank, together with all accretions thereto. Anderson v. Sutton, 243 S.W. 643; Whyte v. St. Louis, 153 Mo. 80; Tatum v. St. Louis, 125 Mo. 647; McBride v. Steinweden, 72 Kan. 508. (8) The judgment in this cause is not irregular, uncertain and void as charged in Point 8 of appellants' assignment of errors for the reason that the judgment nunc pro tunc of the trial court makes complete disposition of all of the defendants named in plaintiff's petition, and in that judgment the trial court in no uncertain terms describes the land in controversy and makes a full and complete disposition of the issues in both counts. (9) By general denial defendants have forfeited any right to be heard in opposition to plaintiff's contention. Gilchrist v. Bryant, 213 Mo. 422; Rohlf v. Hayes, 287 Mo. 340; Barr v. Stone, 242 S.W. 661.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Respondent, plaintiff, brought this suit to settle a dispute over certain real estate situated in Jackson County Missouri, described as follows:

"All that part of Section 24, Township 51, Range 31 and Section 13, Township 51, Range 31 lying South of the Missouri River, and North of the slough running through the North half of said Section 24, Township 51, Range 31 and the South-west quarter of Section 13, Township 51, Range 31, commonly known as 'Rumpus Island or Rumpus Land.'"

In the first count of the petition plaintiff sought to quiet title, and in the second, ejectment of the parties in possession of the land. The defendants were: William L. Crull, Edith Crull, Russell Crull, Samuel O. Smith, Anna A. Smith, Blair L. Dobson, Mabel Dobson, Walter Sumner, Grace May Sumner, Ammon B. Thomas, Hazel Thomas, Carl Thomas, Elena Thomas, Herman Schmidtgall, Rachel Schmidtgall, H. Allen Lafferty, Ruth Lafferty and Jackson County, Missouri, a municipal corporation. Plaintiff claimed title to the land described, on the theory that it had accreted to his land lying to the south thereof, which he had acquired by deeds. The trial court found for plaintiff on both counts of the petition and the following named defendants appealed: William L. Crull, Edith Crull, Russell Crull, Walter Sumner, Grace May Sumner, Ammon B. Thomas, Hazel Thomas, Carl Thomas and Elena Thomas.

Appellants did not assert any ownership in the land in dispute. They filed a general denial. A number of the appellants were in possession of a part of the land as squatters. Plaintiff introduced evidence that in the year 1915, the south river bank extended across Section 24, Township 51, Range 31 beginning at the northwest corner of the southwest quarter of the southwest quarter of said secti...