Groves v. Terry

• Decision Date: 31 March 1909
• Citation: 219 Mo. 595,117 S.W. 1167
• Parties: GROVES et al. v. TERRY et al.
• Court: Missouri Supreme Court

117 S.W. 1167

219 Mo. 595

GROVES et al. v. TERRY et al.

Supreme Court of Missouri, Division No. 1.

March 31, 1909.

Rehearing Denied April 13, 1909.

1. PARTIES (§ 88)—MISJOINDER—WAIVER OF OBJECTIONS.

The objection of misjoinder of parties plaintiff is waived by the failure to demur to the petition.

2. APPEAL AND ERROR (§ 605)—RECORD—EFFECT OF FAILURE TO PRINT.

The Supreme Court will not search through a typewritten full transcript of record to determine what is record proper, record entries, and the bill of exceptions.

3. APPEAL AND ERROR (§ 501)—SAVING EXCEPTIONS —SUFFICIENCY OF BILL OF EXCEPTIONS.

A bill of exceptions to an order sustaining a motion for a new trial is insufficient where it fails to show that an exception was saved.

4. NEW TRIAL (§ 6)—DISCRETION OF COURT.

The granting of a new trial for "misunderstanding and misconstruction of the agreed statement of facts" by the court is a proper exercise of the trial court's discretion.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by Leonard D. Groves and others against Albert T. Terry and others. From an order granting plaintiffs a new trial after findings for defendants, defendants appeal. Affirmed.

J. C. Kiskaddon & R. L. Shackelford, for appellants. Randolph Laughlin, for respondents.

LAMM, P. J.

The suit is under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667), to try and determine title. It was tried on an amended petition which does not describe the real estate claimed by the plaintiffs in common or separately, but alleges that the lots owned by them in fee simple are "contained in and are a part of" a certain larger tract, in turn described by metes and bounds, but whether the owners of this larger tract in its entirety are in court we cannot make out. Why the aggregation of plaintiffs was joined in the action does not appear. There is no averment they own any lots as tenants in common. We take it they do not. It is alleged that plaintiff's are in possession of the (undescribed) lots owned by them, and that defendants have or claim to have an interest "in the tract of ground above set out" —that is, in the larger tract, which contains the lots in controversy—and "that said interest, if any there be, is undetermined, and is a cloud on the title of these plaintiffs."

No demurrer was filed, hence, if the petition states a cause of action at all, no question can now be made here over a misjoinder of parties, if any. Gardner v. Robertson, 208 Mo. 605, 106 S. W. 645.

By answer defendants admit plaintiffs were in possession "of divers and sundry lots of ground contained within the real estate so described in said petition." They deny that plaintiffs are owners in fee. They aver that plaintiffs hold under color of title conferred by divers and sundry deeds from the Overland Real Estate Company. The answer then sets up a claim of title in defendants, and avers that it is a fee-simple title derived under the will of Albert Todd and by the death of their mother (his daughter), mentioned in said will as Elizabeth Helen, wife of John H. Terry, and by virtue of the death of the wife of said Albert Todd, naming her. Wherefore they join in the prayer of the petition that the court determine the estate, title, and interest of the respective parties in said real estate and adjudge that the defendants are owners in fee simple.

The case was tried as in chancery under an agreed statement of facts. It appears therefrom that the Terrys, husband and wife, once owned the land; that they mortgaged it; that they then sold it to Albert Todd, who assumed to pay the mortgage debt; that subsequently Todd died testate, leaving an intricate will devising his real estate in part to his widow for life, with remainder over; that the premises were sold under the Terry mortgage; that Mrs. Terry purchased at that sale; and that plaintiffs hold through mesne conveyances from her and her husband, their title originating in the 80's. The claim of defendants is sufficiently indicated by the answer. In a nutshell, for our present purposes, it may be said that the agreed facts show plaintiffs have a legal title, and that defendants, as the children of Elizabeth Helen Terry, born Todd, claim as alleged beneficiaries under an alleged resulting trust; that is, their title, if any, rests in equity.

The judgment, oddly enough, finds and determines that defendants have title in fee simple "to the real estate described in plaintiffs' petition," and that plaintiffs have no interest in it. The...