George v. Waller

• Decision Date: 30 July 1929
• Docket Number: 27978
• Citation: 19 S.W.2d 284
• Parties: GEORGE v. WALLER
• Court: Missouri Supreme Court

19 S.W.2d 284

GEORGE v. WALLER

No. 27978

Supreme Court of Missouri, First Division

July 30, 1929

James H. Hull, of Platte City, for appellant.

Terrence Riley and Gresham & Gresham, all of Platte City, for respondent.

OPINION

GANTT J.

Ejectment for land described in a conventional petition. The answer was a general denial. Judgment for possession and damages, with a fixed monthly rent and profit. Defendant appealed.

Plaintiff and defendant are sister and brother, the only children and heirs at law of Fountain L. Waller, who died intestate, the owner of the land in question with other land. Thereafter and prior to the institution and trial of this case in the circuit court, the defendant instituted in said court a suit to partition said lands. In the partition suit he sought to enforce an oral contract with his father to convey to him the land in question, alleging performance on his part. The trial court denied specific performance and ordered partition of the lands. Plaintiff therein (defendant herein) appealed without bond to this court. 16 S.W.2d 63. Pending the appeal, the lands were sold under the judgment in partition. Plaintiff herein (defendant therein) purchased the lands. Thereafter she instituted this suit.

I. On the offer of plaintiff, parts of the record in the partition suit were admitted in evidence on the issue of title. Thereupon defendant offered in evidence the record in said case granting an appeal to this court. On objection, the court excluded that part of the record. Of this defendant complains. He contends an equity case is tried de novo in this court, and for that reason the judgment was vacated by the order granting an appeal. He therefore contends that the record and the sheriff's deed admitted in evidence were no evidence of title in plaintiff.

We review the evidence in equity cases, but such action is not a trial de novo. The judgment in partition was conclusive pending an appeal without bond. Rodney v. Gibbs, 184 Mo. 1, loc. cit. 11, 15, 82 S.W. 187; Vantine v. Butler, 250 Mo. 445, loc. cit. 450, 157 S.W. 588; Bobb v. Taylor (Mo. Sup.) 193 S.W. 800; section 1473, Rev. St. 1919.

Furthermore, the record and sheriff's deed were admitted without objection and on March 29, 1929, we affirmed the judgment in the partition suit. Waller v. George, 16 S.W.2d 63. The contention is overruled.

II. For the same reason defendant challenges the instruction given at the request of plaintiff. As stated, the order granting the appeal did not vacate the judgment in partition. The instruction directed the jury to determine if the defendant at the time of the institution of the suit was unlawfully in possession of the land and withholding same from plaintiff. We find no error in the instruction, and the contention is overruled.

III. Defendant offered an instruction that, if ...