Denvir v. Crowe

• Decision Date: 06 October 1928
• Docket Number: 27114
• Citation: 9 S.W.2d 957,321 Mo. 212
• Parties: Frances v. H. Denvir v. S. H. Crowe, Appellant
• Court: Missouri Supreme Court

9 S.W.2d 957

321 Mo. 212

Frances v. H. Denvir v. S. H. Crowe, Appellant

No. 27114

Supreme Court of Missouri

October 6, 1928

Appeal from Circuit Court of City of St. Louis; Hon. Franklin Miller, Judge.

Affirmed.

Virginia J. Booth, James Booth and Joseph C. McAtee for appellant.

(1) The evidence being that plaintiff had no possession at the time of the alleged conversion, the burden was on her to prove her actual title to the organ in controversy. Sullivan v Fanth, 199 S.W. 1116. (2) The organ having been installed in a room specially built for it by the owner being specially adapted to the room in which it was placed being for the permanent use and enjoyment of its owner, and being affixed to the building, constituted it a fixture and integral part of the realty. Crane Co. v. Const. Co., 121 Mo.App. 219; Tyler v. White, 68 Mo.App. 610; Thomas v. Davis, 76 Mo. 72; Rogers v. Crow, 40 Mo. 92; Chatman v. Ins. Co., 4 Ill.App. 32; 26 C. J. 657. (3) The donee of the power conferred by the will of C. B. Parsons was confined, in his selection, to the objects or class named, and an appointment by him contrary to the power was void. 31 Cyc. 1065. (4) The will having conferred a power on the trustees to make distribution equally among the children of C. B. Parsons upon the death of his wife and providing that the child of a deceased child should take the share of its parent, the act of the trustee in distributing and awarding the organ in question (if it be a fact that it was so awarded) to plaintiff at a time when the daughter of Roscoe Parsons was still living, was void and vested plaintiff with no title to the organ. Arnold v. Brockenbrough, 29 Mo.App. 625; 31 Cyc. 1059, 1146; Von Behrn v. Stoepplemann, 226 S.W. 785. (5) Under the will of C. B. Parsons his son, Roscoe Parsons, became vested with a contingent remainder in the property of his deceased father, and upon the death of Roscoe, leaving a daughter living, that daughter became vested with a remainder in said property -- which could not be divested by any act of the trustee in contravention of the terms of said will. Collier's Will, 40 Mo. 287; authorities under points 2, 3, 4. (6) Plaintiff never had or took possession of the organ and, as a result of failure to take or have possession, had no title to the organ even under her own evidence. Sec. 2278, R. S. 1919; Layson v. Rogers, 24 Mo. 192; Pattison v. Litton, 56 Mo.App. 335. (7) The organ, having never been legally severed from the freehold, trover would not lie. 38 Cyc. 2015; Land & Gravel Co. v. Commission Co., 138 Mo. 439. (8) In actions for conversion a new trial should be granted where the finding is excessive. The finding should be such as is necessary to meet the end of justice. 38 Cyc. 2104.

Carter, Jones & Turney and Robert Burkham for respondent.

(1) Under the will of Charles B. Parsons, upon the death of his widow, the right to a distributive share immediately vested in his son, Roscoe Parsons, who was then living, and upon the death of Roscoe Parsons his interest in the estate passed to plaintiff, his wife, as the sole beneficiary under his will. Hutcheon v. Mannington, 1 Vesey, Jr. 366; Green v. Irvin, 274 S.W. 684; Collier's Will, 40 Mo. 287; 40 Cyc. 1662. (2) Even if (contrary to the fact) Roscoe Parsons' child died after the distribution, since it was a minor and therefore could not have made a will, and since the record shows it was an only child, the mother has succeeded to all the child's interest in the C. B. Parsons estate. (3) Appellant is bound by the covenants in his own chain of title, and estopped to deny them. (a) A covenant in a deed is binding upon the grantee if the deed is accepted by him. 15 C. J. 1211; Porge v. Railway Co., 24 Mo.App. 199. (b) Such a covenant binds the grantee's successors in title. 7 R. C. L. 1100; Sharp v. Cheatham, 88 Mo. 498; Stoutimore v. Clark, 70 Mo. 471; Hasenritten v. Kirchhoffer, 79 Mo. 239. (4) The organ, even though perhaps originally a fixture, had been constructively severed by agreement and had become personal property. (a) The parties may lawfully agree that a fixture shall be or shall become personal property. 26 C. J. 676; Bronson, Fixtures, 133; Hines v. Ament, 43 Mo. 298; Goodman v. Railroad, 45 Mo. 33; Lowenberg v. Bernd, 47 Mo. 297; Priestly v. Johnson, 67 Mo. 632; Nieswanger v. Squier, 73 Mo. 192; Brown v. Turner, 113 Mo. 27; Kuhlman v. Meier, 7 Mo.App. 260; Gregg v. Railway Co., 48 Mo.App. 494; Cox v. McKinney, 258 S.W. 445; Pile v. Holloway, 129 Mo.App. 593; Muehling v. Magee, 168 Mo.App. 675; Clay Machinery Co. v. Brick Co., 174 Mo.App. 485. (b) Agreements respecting the character of fixtures are binding not only upon the parties but upon subsequent purchasers having notice, either actual or constructive. 26 C. J. 681; Priestly v. Johnson, 67 Mo. 632; Pile v. Holloway, 129 Mo.App. 593; Muehling v. Magee, 168 Mo.App. 675; Clay Machinery Co. v. Brick Co., 174 Mo.App. 485; Cox v. McKinney, 258 S.W. 445. (c) Where an article is assigned the character of personal property by agreement (express or implied) the mode of its affixation is immaterial. Kuhlman v. Meier, 7 Mo.App. 260; Clay Machinery Co. v. Brick Co., 174 Mo.App. 485. (d) It is immaterial whether the agreement that the article shall be treated as personal property is made at the time of its installation or subsequently. Bronson, Fixtures, p. 133. (e) The organ has been made personalty by constructive severance. 26 C. J. 591, 691, 727; Bronson, Fixtures, p. 119. (f) Trover is the proper remedy in such a case as this. 26 C. J. 734; Nieswanger v. Squier, 73 Mo. 192; Pile v. Holloway, 129 Mo.App. 593; Clay Machinery Co. v. Brick Co., 174 Mo.App. 485. (5) (a) Sec. 2278, R. S. 1919 (relied upon by appellant), is inapplicable, for: The statute in terms is limited to "gifts" and there was no gift in this case; (b) Plaintiff was in legal possession of the organ; (c) Her title appears in recorded instruments.

Higbee, C. Davis and Henwood, CC., concur.

OPINION

HIGBEE

This action was instituted December 29, 1922, by the respondent, formerly Mrs. Roscoe R. S. Parsons, in the Circuit Court of the City of St. Louis, for damages for the conversion of an Aeolian pipe organ, the damages being laid at $ 10,000. The answer is a general denial. A trial to the court without a jury resulted in a finding and judgment for plaintiff in the sum of $ 8000, and defendant appealed.

The evidence is in substance as follows:

Mr. C P. Parsons, actively connected with the St. Joseph Lead Company, had lived with his family in a large brick residence at Riverside, Jefferson County, Missouri. He bought and installed the organ in this building in 1906. The price paid was $ 6000. The instrument consists of the organ proper and the console, which is the case around the keyboard. The console is attached to the keyboard by two screws. A window in the outside wall of the music room was taken out, a part of the wall removed, a false jam put in, and a room, nine by ten feet inside measurement, was built of concrete blocks on the outside of and against the wall. The organ was installed in this concrete room and rests on the foundation. It is not secured or nailed down. The pipes of the organ stand in racks upon what is known as the chestwork, made of wood, which is fastened to the foundation frames upon the floor. In front of the organ is a grill work attached to the building. It is no part of the organ. The keyboard is in the music room.

Mr. Parsons died, testate, in 1910, survived by his widow, two sons and three daughters. He made certain specific bequests, leaving the residue of his estate to his widow and his two sons Roscoe and Gerard and to the survivors or survivor of them, as trustees. The trustees were to pay the net income to his wife, Jane E. Parsons, during her life and make distribution of the estate at her death. They were required to divide the estate into "as many equal portions as there are children or descendants (or husbands or wives) of then deceased children living at the time of distribution; the descendants or wife of one of my said children, if then deceased, being counted in place of their deceased parent."

The trustees were empowered to make division in kind or to sell and convert into cash or to divide partly in cash and partly in kind, and to place a value on any asset for the purpose of such division, and all divisions as made by the trustees shall be final and conclusive upon the beneficiaries.

Mrs. Parsons died April 29, 1915. Of the three daughters, one, Jessie H. Parsons, married Ben Blewett and died in 1914. Mr. Blewett died before the trial of this case. They had no children. The other daughters married and they and their husbands were living at the time of the trial. One of the sons, Roscoe Parsons, plaintiff's husband, died testate on August 27, 1915, four months after his mother's death. They had one child, Frances, who died in January, 1916, aged seven years. The other son, Gerard S. Parsons, who was living in January, 1916, died before this case was tried. Roscoe Parsons, by his will duly probated, after mentioning his daughter, devised his property to his widow, the plaintiff in this case.

There were numerous family meetings and discussions relative to the distribution or partition of the estate. Finally a meeting was called by Gerard S. Parsons, the surviving trustee, and held in January, 1916, to determine whether certain of the beneficiaries should buy the Riverside property and to distribute the goods and chattels at Riverside. It was agreed that the organ should go to Mrs. Roscoe Parsons, as appears by a memorandum made at the time, and the Riverside property should be conveyed to Mrs. Mabel Parsons Knapp, Mrs. Roscoe Parsons and Ben Blewett. Pursuant to this conclusion a...