Egan v. Woelfel

• Decision Date: 04 June 1929
• Docket Number: 27593
• Citation: 18 S.W.2d 50,323 Mo. 27
• Parties: Mabel Egan v. George Woelfel and Mamie Woelfel, Appellants, et al
• Court: Missouri Supreme Court

18 S.W.2d 50

323 Mo. 27

Mabel Egan v. George Woelfel and Mamie Woelfel, Appellants, et al

No. 27593

Supreme Court of Missouri

June 4, 1929

Appeal from Circuit Court of City of St. Louis; Hon. John W Calhoun, Judge.

Affirmed.

T. J Rowe for appellants.

(1) Nellie St. Cyr and Florence Kemp are not parties, either plaintiff or defendant, and the circuit court had no jurisdiction to render a decree in the case either in favor of or against them without first having them join as parties plaintiff or defendant. (2) Mabel Egan, the widow of Thomas Egan, has no title to the real estate and cannot maintain this action. Sec. 315, R. S. 1919; Laws 1921, p. 111, sec 325; Brawford v. Wolfe, 103 Mo. 398. (3) The decree is erroneous because the court should have found that the appellants George and Mamie Woelfel had paid two special tax bills amounting to $ 354, which were a lien on said real estate, and also general taxes from 1916 up to 1926, amounting to $ 294, and Mamie Woelfel, being a tenant in common according to the decree, should be reimbursed for the amount of the taxes paid by her and her husband.

Gillespie & Dempsey for respondent.

(1) Nellie St. Cyr and Florence Kemp are not necessary parties to this suit. Cullen v. Atchison County, 268 S.W. 96; Barr v. Stone, 242 S.W. 664; Graton v. Lumber Co., 189 Mo. 322; Gage v. Cantwell, 191 Mo. 698. (2) Appellants did not pray for a decree quieting title, and are not in a position to complain of the omission of Nellie St. Cyr and Florence Kemp as parties. (3) The statute, Sec. 197, R. S. 1919, is remedial and should be liberally construed. Talbert v. Grist, 198 Mo.App. 492, 201 S.W. 909; Coal Co. v. Dent, 308 Mo. 547, 274 S.W. 32. (4) The right to a dower interest is sufficient to entitle a widow to bring an action under Section 1970. Deal v. Lee, 235 S.W. 1055; Miller v. Lloyd, 275 Mo. 35, 204 S.W. 257; Talbert v. Grist, 198 Mo.App. 492, 201 S.W. 909; Spicer v. Spicer, 249 Mo. 582; Evangelical Church v. Schreiber, 277 Mo. 113; Dowd v. Bond, 199 S.W. 956. (5) A right to dower interest is sufficient to entitle a widow to bring a suit in equity against persons attempting to defraud her out of dower. (6) The decree is not erroneous for failing to require that defendants George and Mamie Woelfel be reimbursed for taxes paid, because their answer does not pray that they be so reimbursed, and because they voluntarily paid taxes knowing that they had no title under the deed in question. Kellogg v. Moore, 271 Mo. 189, 196 S.W. 15.

OPINION

White, J.

The plaintiff filed suit in the Circuit Court of the City of Saint Louis, the purpose of which was to determine title to a lot, described, in said city, the plaintiff claiming a dower interest in the property, as the widow of Thomas Egan, deceased.

The petition alleges that Thomas Egan, plaintiff's deceased husband, acquired the said property by warranty deed dated July 3, 1918, from the Standard Real Estate Company, a corporation, and that January 7, 1919, while said Thomas Egan was sick and confined to his home, the defendant, George Woelfel, without any consideration obtained possession of the said warranty deed, and for the purpose of defrauding the plaintiff of her right and interest in said property and defrauding Thomas Egan of his right and interest in the property, erased the name of Thomas Egan as grantee and inserted the name of George Woelfel, and filed the same for record January 7, 1919. Wherefore the plaintiff prayed the court to ascertain and determine the title and adjudge the respective rights, titles and interests of the parties.

Defendants Woelfel filed answer in which they denied that George Woelfel obtained possession of the warranty deed described in the petition, without consideration, and denied that any warranty deed was made to Thomas Egan, deceased, or that he acquired any title by warranty deed dated July third, and denied that George Woelfel erased the name of Thomas Egan, as grantee, and inserted the name of George Woelfel, or that the defendants filed the same for record on January 7, 1919.

The answer then alleges that Thomas Egan, July 3, 1918, for valuable consideration delivered to George Woelfel and Mamie Woelfel a warranty deed by which the Standard Real Estate Company conveyed the real estate described in the petition to George Woelfel, and that from and after July 3, 1918, the defendants George and Mamie Woelfel paid all taxes, general and special, that were then due and a lien on the said real estate, and have ever since paid all taxes, general and special, that have been assessed against the said real estate, all amounting to $ 700.

The reply denied the allegations of the answer.

At the time of Thomas Egan's death he left surviving him no children, but left his widow, the plaintiff; a sister Mamie Woelfel, defendant; a brother, William T. Egan; a half-sister, Nellie St. Cyr; and a niece, Florence Kemp, daughter of a deceased sister. William T. Egan died intestate since the death of Thomas Egan, leaving as his only heir the defendant James W. Egan. It appears that James W. Egan was made party defendant, but that Florence Kemp and Nellie St. Cyr were not made parties. James W. Egan filed a separate answer.

The plaintiff introduced evidence to prove that Thomas Egan purchased the land in dispute from the Standard Real Estate Company on monthly payments, and had a sort of pass book in which were entered his payments. The plaintiff testified that she kept the book and went to the office of Cornet & Zeibig and made the monthly payments until the total purchase price was paid; that she received a deed executed by the Standard Realty Company in which that Company conveyed the land to Thomas Egan; that Thomas Egan's name was in the deed at the time as grantee. That George Woelfel came to her about October, 1918, and told her that her husband had sent him for the deed for the purpose of recording it; that she gave him the deed and never saw it afterwards; that it was an exact copy of the deed, a certified copy of which was introduced in evidence, except that Thomas Egan was grantee instead of George Woelfel.

One Henry Cornet testified that he was a member of the firm of Cornet & Zeibig, and that he was president of the Standard Realty Company. That his record showed purchase by Thomas Egan of the land in dispute for $ 500 on monthly payments, and showed the payments were made and the deed executed; that the deed must have been made to Thomas Egan or else a transfer would have appeared on his books. The certified copy of deed introduced in evidence showed it was acknowledged by Henry L. Cornet as president, and attested by Frederick G. Zeibig, as secretary.

The defendant Woelfel, being incompetent, was not permitted to testify as to the allegations of the answer that Thomas Egan delivered to him the deed in that form, but he did testify to the payment of the general and special taxes on the property. Other evidence was introduced to corroborate the plaintiff's statement in support of her theory. The trial court rendered judgment March 15, 1926, finding that the Standard Realty Company, July 3, 1918, conveyed the land in dispute to Thomas Egan, and that George Woelfel, without consideration, obtained possession of the deed and fraudulently changed the name of the grantee. The court then adjudged the title to be as follows: ...