General Theatrical Enterprises v. Lyris

Decision Date03 October 1939
Docket NumberNo. 25117.,25117.
Citation131 S.W.2d 874
PartiesGENERAL THEATRICAL ENTERPRISES, Inc., v. LYRIS et al.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; Frank C. O'Malley, Judge.

"Not to be reported in State Reports."

Action to quiet title by the General Theatrical Enterprises, Inc., against William Lyris, wherein the defendant filed a cross-bill bringing in as cross-defendants the Opportunity Realty & Investment Company and others. From a judgment in favor of plaintiff, William Lyris appealed to the Supreme Court which transferred the case to the St. Louis Court of Appeals, 121 S.W.2d 139.

Affirmed.

Igoe, Carroll, Keefe & McAfee, of St. Louis, for appellant.

Jeffries, Simpson & Plummer, of St. Louis, for respondent General Theatrical Enterprises, Inc.

Ivon Lodge, of St. Louis, for cross-defendants Opportunity Realty & Investment Co., A. J. Kuhs Realty & Investment Co., and A. J. Kuhs.

SUTTON, Commissioner.

This is an action to quiet the title to certain real estate known as the Hi-Pointe Theatre property, situate in the City of St. Louis. The action was originally brought by plaintiff, General Theatrical Enterprises, against defendant William Lyris. The Opportunity Realty and Investment Company, A. J. Kuhs Realty and Investment Company, A. J. Kuhs, Elmer E. Kuhs, Walter A. Kuhs, Martha Kuhs, Emma Kuhs, and Edna Kuhs were afterwards brought in as cross-defendants on motion of defendant William Lyris. There was a judgment for plaintiff and the cross-defendants, and defendant William Lyris appealed to the Supreme Court. That court, finding itself without jurisdiction transferred the cause to this court. See General Theatrical Enterprises v. Lyris, 121 S.W.2d 139.

The decision of this appeal involves the examination of 569 pages of record and briefs of counsel.

Plaintiff's petition alleges that it is the owner and in possession of the Hi-Pointe Theatre property; that it acquired the property on December 29, 1933, by warranty deed from A. J. Kuhs Realty and Investment Company, a corporation; that A. J. Kuhs Realty and Investment Company acquired the property from James Matthews P. Crumpecker by warranty deed dated September 1, 1931, who acquired the same from the trustee of Opportunity Realty and Investment Company, a corporation; that defendant was claiming to have some title, estate, or interest in said property under a written instrument dated June 1, 1931, purporting to be a lease from said Opportunity Realty and Investment Company; that said instrument is not a valid lease, and that whatever right, title, or interest was purported to be granted by said instrument has been cancelled by said Opportunity Realty and Investment Company, and by its successors in title, A. J. Kuhs Realty and Investment Company and this plaintiff in accordance with the terms thereof; that notwithstanding said instrument was not acknowledged by the said Opportunity Realty and Investment Company or any one on its behalf, and said company was not the record owner of said property at said time said instrument at the instance of defendant has been wrongfully spread upon the records of the recorder's office of the City of St. Louis; that said purported lease is a cloud on plaintiff's title and if left to stand will hinder and embarrass plaintiff, its successors and assigns in the use, enjoyment and disposition of said real estate. The petition then prays that the court try, ascertain, and determine the estate, title, and interest of the parties, plaintiff and defendant, in and to said property; that said purported lease be cancelled, and defendant be adjudged to have no right, title, estate, or interest in or to said property.

The answer of defendant Lyris alleges that at the time plaintiff received the deed to the Hi-Pointe property plaintiff and all the cross-defendants knew that this defendant had received from the Opportunity Realty and Investment Company a bona fide lease on said property, which lease would become effective March 2, 1934; that if the record title was ever in James Matthews P. Crumpecker it was only in his name as a straw party for the Opportunity Realty and Investment Company; that said Crumpecker gave no consideration for the property, and the equitable and beneficial interest, right and title in and to the property remained in the Opportunity Realty and Investment Company; that defendant is claiming title to said property under a lease dated June 1, 1931, executed by the Opportunity Realty and Investment Company, which was the owner of the beneficial and equitable title, estate, and interest in and to said property on said date, and that said lease is a valid lease on the property; that the said Opportunity Realty and Investment Company, A. J. Kuhs Realty and Investment Company, and plaintiff herein were without authority at law or in equity to cancel said lease, and that said lease is now in full force and effect, and that this defendant has continuously since March 2, 1934, been unlawfully deprived of the possession of said property by the plaintiff and the cross-defendants; that plaintiff at the time of receiving the warranty deed from A. J. Kuhs Realty and Investment Company knew of the existence of said lease and the same was then of record in the office of the recorder of deeds of the City of St. Louis; that the cross-defendants knew that this defendant held said lease and that under its terms this defendant was entitled to the possession of said property from March 2, 1934, for a period of five years; that the title received by A. J. Kuhs Realty and Investment Company from Crumpecker was the bare legal title to said property and was taken and received by A. J. Kuhs Realty and Investment Company with knowledge and notice that said Crumpecker was then holding as a straw party for the Opportunity Realty and Investment Company the legal title to said property for the use and benefit of said Opportunity Realty and Investment Company; that A. J. Kuhs Realty and Investment Company took title with knowledge and notice that the Opportunity Realty and Investment Company had entered into said lease with this defendant; that the title received by plaintiff for said property from A. J. Kuhs Realty and Investment Company was taken and received by plaintiff with knowledge and notice of said lease.

The answer prays that the court adjudge that said lease is a valid lease on said property and is not a cloud on any title plaintiff may now have to said property; that this defendant has been entitled to the possession of said real estate since March 2, 1934, under said lease, and since said date has been wrongfully deprived of the peaceful possession thereof by plaintiff and the cross-defendants, and further prays the court to award him such damages against the plaintiff and the cross-defendants as the court under all the facts shall determine this defendant may be justly entitled to until he is placed in peaceful possession of said real estate.

The answer of the cross-defendants admits the allegations of plaintiff's petition and denies generally the allegations of defendant's answer, and prays that the purported lease from the Opportunity Realty and Investment Company to defendant dated June 1, 1931, be adjudged cancelled and null and void, and that defendant be adjudged to have no right, title, or interest in or to said real estate.

Plaintiff's reply denies that plaintiff had any knowledge of the purported lease as recorded in the office of the recorder of deeds, and alleges that said purported lease was not a bona fide lease; that the Opportunity Realty and Investment Company was not at the time of the making of said lease or thereafter the owner of record of the property; that whatever right, title, or interest the Opportunity Realty and Investment Company ever had in said property was lost to it under a foreclosure sale pursuant to a deed of trust executed by the Opportunity Realty and Investment Company dated June 2, 1922, whereby said Opportunity Realty and Investment Company conveyed the property to Oscar L. Kuhs, as trustee, to secure the payment of promissory notes made payable to the order of Esther Schlosser; that said foreclosure sale under said deed of trust was duly had and said trustee executed a trustee's deed under date of August 16, 1928, whereby the premises were conveyed to one James Matthews P. Crumpecker; that said trustee's deed is duly recorded in the office of the recorder of deeds of the City of St. Louis, having been filed for record on August 31, 1928; that thereafter said Crumpecker remained the owner of the legal title of said premises and owner of record thereof until September 1, 1931, when he conveyed said premises to A. J. Kuhs Realty and Investment Company by warranty deed which was filed for record on June 20, 1932, and now remains of record in the office of the recorder of deeds of the City of St. Louis; denies that plaintiff had any knowledge that any person or corporation other than those having record title had any equitable title in said real estate; alleges that the records of the recorder's office at the time of the purchase by plaintiff showed the record title to have passed from the Opportunity Realty and Investment Company to said Crumpecker, and from said Crumpecker to the A. J. Kuhs Realty and Investment Company, and that plaintiff purchased said property in reliance upon said title being in said A. J. Kuhs Realty and Investment Company, and without knowledge to the contrary.

On June 1, 1931, the property in question was leased by the Opporunity Realty and Investment Company to William Lyris for a term of five years commencing March 2, 1934, and ending March 1, 1939, at a rental of $600 per month. The lease was executed in duplicate by the Opportunity Realty and Investment Company and William Lyris, but was not acknowledged by either or filed for record. That lease contained the following provision: "If the said lessor or owner of said...

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  • Kresge Co. v. Shankman
    • United States
    • Missouri Court of Appeals
    • 24 Mayo 1948
    ... ... App. 186 S.W. 2d 510; Boland v. Byrne, 145 S.W. 2d 755; General Theatrical Ent. v. Lyris, 121 S.W. 2d 139, Tr. App. 131 S.W. 2d 874. (2) ... ...
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    ...576, 51 S.W. 691, 692(3); Bishop v. Schneider, 46 Mo. 472, 480(2); Stevens v. Hampton, 46 Mo. 404, 407-408; General Theatrical Enterprises v. Lyris, Mo.App., 131 S.W.2d 874, 878(1); Drzewiecki v. Stock-Daniel Hardware Co., Mo.App., 293 S.W. 441, 445. Consult also State ex rel. and to Use of......
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