Gray v. Clement
| Decision Date | 22 December 1922 |
| Citation | 246 S.W. 940,296 Mo. 497 |
| Parties | MARY GRAY et al., Appellants, v. MICHAEL CLEMENT and FRANCES CLEMENT, Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon Franklin Ferriss Judge.
Reversed and remanded (with directions).
T. J Rowe, T. J. Rowe, Jr., and Henry Rowe for plaintiffs.
(1) The circuit court had no jurisdiction to render a judgment in the case of Josephine Brokel and Frank Brokel v. Mary Brokel et al., because the petition showed on its face that Josephine Brokel had an estate for life in said property, and under the statute a life tenant cannot maintain partition against those having the estate in remainder. Sec. 3339, R.S. 1879 (now Sec. 2559, R.S. 1919); Stockwell v. Stockwell, 262 Mo. 671. (2) The common source of title to the real estate described in the petition was Francois Giraldin; the defendants, Michael Clement and Frances Clement, acquired by mesne conveyances an estate in the property during the life of Josephine Brokel, and at the death of Josephine Brokel their estate terminated and the plaintiffs and Emma Reidmeyer, after the death of Josephine Brokel, had an estate in fee simple in said real estate. (3) This court has decided that the plaintiffs and Emma Reidmeyer have the fee-simple title to the property described in the petition herein, and on September 5, 1917, the date of the death of Josephine Brokel, the estate which Michael and Frances Clement owned terminated and that the plaintiffs and Emma Reidmeyer were entitled to the possession of said property. Gray v Clement, 286 Mo. 100. (4) The right to recover for the improvements is a statutory action and improvements cannot be recovered in a statutory action to ascertain and determine the title to real estate. Sec. 2535, R.S. 1909 (now Sec. 1970, R.S. 1919); Henderson v. Langley, 76 Mo. 228; Tice v. Fleming, 173 Mo. 56; Brown v. Baldwin, 121 Mo. 114; Bristol v. Thompson, 204 Mo. 366; Mann v. Doerr, 222 Mo. 18; State ex rel. v. Foard, 251 Mo. 56. (5) The value of the rents and profits of the real estate described in the petition is $ 64.50 per month, according to the testimony of Michael Clement. Plaintiffs were entitled to possession on September 5, 1917, and consequently should have had a judgment for the rents and profits from September 5, 1917, up to the date of the judgment. The rents and profits from September 5, 1917, to September 5, 1922, amounted to $ 3850. Plaintiffs should have a judgment awarded them for at least that amount. A person who has made improvements upon lands, tenements or hereditaments prior to his having had notice of an adverse title has no lien on the land that he improves by virtue of either statutory or common law. The only right to recover for improvements made in good faith by one having no title to the real estate is given by the statute, Sec. 1834, R.S. 1919. See Secs. 1835 to 1840, R.S. 1919. (6) The right to recover for improvements is not given by Sec. 1970, R.S. 1909. (7) A party who purchases at a commissioner's sale in partition acquires only the title of the parties to the partition suit. A purchaser at a partition sale buys at his peril. McMenany v. Cole, 134 Mo.App. 266. There is no warranty of title in a partition suit. Schwartz v. Dryden, 27 Mo. 572; Cashion v. Faina, 47 Mo. 133; Chilton v. Harris, 179 Mo.App. 270; Smoot v. Judd, 161 Mo. 691. (8) Improvements made on property by a life tenant attach to the estate and pass to the reversionary remaindermen at the expiration of the life estate without any liability on his part to make compensation therefor. Shaftner v. Schilling, 6 Mo.App. 42; Henry v. Brown, 99 Ky. 13; Taylor v. Campbell, 86 Ga. 181. (9) If Frank Brokel, the grandfather of Frank F. Brokel, and the father of the other plaintiffs in the case, had not conveyed the real estate described in the petition to Schulte and had survived his wife, Josephine Brokel, he could not maintain an action to recover the value of the improvements from his children and grandson. Consequently Michael and Frances Clement cannot recover the value of the improvements made by him on the property described in the petition. (10) The court erred in adjudging one-half the costs against plaintiffs. Secs. 1694, 1972, R.S. 1919.
Marion C. Early for defendants.
(1) A judgment in partition in a suit brought solely by the life tenant as plaintiff against the remaindermen as defendants, though erroneous, is not void; and a purchaser at a sale under such a decree has a title that cannot be attacked collaterally. Cromwell v. Hull, 97 N.Y. 209; Reed v. Reed, 107 N.Y. 545; Harrison v. Higgins, 218 N.Y. 556. (2) When the court has cognizance of the class of cases to which the one adjudged belongs, and of the parties, the point decided, though erroneously, is res adjudicata, and cannot be attacked collaterally. Hagerman v. Sutton, 91 Mo. 519; Rivard v. Railroad Co., 257 Mo. 135; Jaco v. Railroad, 94 Mo.App. 567; Winningham v. Trueblood, 149 Mo. 580; Chrisman v. Divinia, 141 Mo. 122; King v. Theis, 272 Mo. 416; Cochran v. Thomas, 131 Mo. 258; Sparks v. Clay, 185 Mo. 393, as construed in Stockwell v. Stockwell, 262 Mo. 687. (3) If the owner of an interest in property receives as such the proceeds of the sale of that property under a judicial sale, then, even though the judicial proceeding is void, such owner cannot assert his title against the purchaser at such sale. Hector v. Mann, 225 Mo. 228; Pockman v. Meatt, 49 Mo. 349; Proctor v. Nance, 220 Mo. 104; Cape Railroad v. Southern Bridge Co., 215 Mo. 286. (4) What the guardian ad litem in a partition suit does in that case on behalf of the minor is as binding on the latter as if it had been done by him after his disability were removed. R.S. 1909, secs. 2566, 2567; LeBourgeois v. McNamara, 82 Mo. 189; Payne v. Masek, 114 Mo. 631; Stump v. Hornback, 94 Mo. 26; Russell v. Defrance, 39 Mo. 506. (5) Defendants properly set up all equities in this proceeding. The court has full power to grant proper relief. Talbert v. Geist, 198 Mo.App. 492. It has been held that when plaintiffs and defendants derive their title from a common source, as they do here, improvements can be pleaded as an equitable defense. Henderson v. Langley, 76 Mo. 226. (6) The sale in 1909 was widely advertised; plaintiffs were fully advised of such sale, knew Clement had purchased the property, which facts, coupled with numerous other undisputed facts, constitute an estoppel against plaintiffs. Wendell v. Van Renselaer, 1 John Ch. 244; Withers v. Railroad, 226 Mo. 399; Guffey v. O'Reily, 88 Mo. 418; Palmer v. Welch, 171 Mo.App. 580. (7) When the purchaser at a partition sale thought he got a fee, but was adjudged to have got a life estate, though the error was of record and the purchaser made improvements, the grantee of such purchaser under these conditions -- precisely as in the case at bar -- may recover the value of such improvements. Gallenkamp v. Westmeyer, 116 Mo.App. 680; Stump v. Hornback, 15 Mo.App. 367; Mobley v. Nave, 67 Mo. 546; Shrover v. Nickell, 55 Mo. 264; Mann v. Doerr, 222 Mo. 1, 18; Tire v. Fleming, 173 Mo. 49; Bristol v. Thompson, 204 Mo. 366.
This is a suit brought under Section 1970, Revised Statutes 1919, to quiet title to certain real estate in the city of Saint Louis, and in ejectment. This is the second appeal in this case. On a former trial there was a judgment for defendants and plaintiffs appealed. This court reversed and remanded the case. [Gray v. Clements, 286 Mo. 100, 227 S.W. 111.] The hearing and determination following this reversal constitute the matters for review.
This property, as described in the petition, was devised by Francois Giraldin, the owner of the fee, to his daughter Josephine Brokel for life, with remainder in fee therein to her children or their descendants. On December 26, 1878, this will was probated in the probate Court of the City of Saint Louis. On the 16th day of January, 1880, Josephine Brokel, the life tenant, and her husband, Frank Brokel, brought a suit in the Circuit Court of the City of Saint Louis against their children, the remaindermen in fee, to partition the land in question. The petition alleges that plaintiffs Josephine and Frank Brokel are husband and wife, and that the defendants are the fruits of said marriage and are all minors; that Francois Giraldin died seized in fee of the real estate described in the petition, and by his last will devised the land to his daughter Josephine Brokel for the term of her life and at her death the same was to be divided among her children or their descendants; that the title of said Josephine Brokel in said land is that of a life estate, and that Frank Brokel has a right by the curtesy to same; that the defendants are each entitled to a one-fifth interest in fee in said land subject to the life estate of Josephine and the right by the curtesy of Frank Brokel; that the nature of the land is such as to render it incapable of partition in kind and an order of sale is prayed for.
On the 26th day of May, 1880, a decree of partition and an order of sale was made in that suit. A commissioner was appointed to sell the land and compute the value of the life estate. On June 29, 1880, the land was sold, the purchaser being Frank Brokel, at the sum of four hundred dollars. The report of the sales was approved by the court and a deed therefor made to him, which was formally acknowledged. The wife's interest in the proceeds of the sale having been apportioned, the amount due each child of the pittance remaining was stated, but there is no showing that it was ever paid to them.
In 1881 or 1882, Frank Brokel erected two buildings on this land at a cost of about eight thousand one hundred dollars. He and his wife subsequently executed a...
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