Hayes v. Schall

• Decision Date: 31 May 1910
• Citation: 129 S.W. 222,229 Mo. 114
• Parties: HAYES et al. v. SCHALL et al.
• Court: Missouri Supreme Court

129 S.W. 222

229 Mo. 114

HAYES et al. v. SCHALL et al.

Supreme Court of Missouri. Division No. 1.

May 31, 1910.

Rehearing denied June 14, 1910.

1. EQUITY (§ 62)—EQUITY FOLLOWS THE LAW.

When a purely legal title is drawn into an equity case, it is decided according to the rules of law, equity in such case following the law.

2. QUIETING TITLE (§ 44)—SUFFICIENCY OF EVIDENCE.

In a suit to quiet title, evidence held to support a judgment for plaintiffs.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by Leander F. Hayes and another against Matilda Schall and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Spencer & Landis, for appellants. H. K. White, for respondents.

VALLIANT, J.

This is a suit to quiet title, under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667). The land called for in the petition is the south half of lots 21, 22, 23, and 24, block 4, in St. Joseph Eastern Extension addition. Benjamin Fetzner is the common source of title. March 1, 1872, Fetzner executed a mortgage whereby he conveyed the lots in question to Louis Mentzel to secure him against his liability as indorser on two notes, one for $2,000 due 90 days after March 1, 1872, the other for $600 due 90 days after February 20, 1872, both bearing interest after maturity at 10 per cent. Plaintiffs claim that at or about the maturity of the notes Mentzel went into possession of the property under some agreement with Fetzner, the nature of which cannot now be known because both men are dead, and that Mentzel and those claiming under him have been in adverse possession ever since and have made valuable improvements thereon. Plaintiffs, by mesne conveyances, hold whatever title Mentzel and his successors acquired in that way. So far as the record shows there has been no foreclosure of the mortgage and no redemption; the record shows nothing on that subject. The defendants Matilda Schall and Josephine Young are the heirs at law of Benjamin Fetzner, deceased, who was their grandfather, and each claims title of one-third by descent.

Plaintiffs' theory is that a mortgagee has a right to possession after condition broken, and, if acting on that right, he takes possession, time never runs against his right to hold possession as against the mortgagor who can recover possession only on payment of the mortgage; that, when time bars the right to foreclose, the right to redeem is also barred, and the mortgagee's title becomes absolute. Plaintiffs also contend that the possession of Mentzel began in 1874 and continued in him during the lifetime of Fetzner, who died in 1881, and thence in Mentzel and his assigns down to the date of the institution of this suit in 1906. As against the plaintiffs' claim of title under the statute of limitations the defendants Mrs. Schall and Mrs. Young assert that Mentzel's possession ended in 1879, and that he or those claiming under him did not take possession again until 1889, at which time the defendants were both married women and have remained so ever since. This suit concerns the title to the south half of the lots mentioned; there was another suit of like nature filed at the same time by another plaintiff, A. A. McIninch, against the same defendants to quiet the title to the north half of these lots. The plaintiff in that suit claims title under Mentzel in the same way that the plaintiffs in this suit claim title, and the defendants, who are the same in both suits, claim as heirs of their grandfather Fetzner, and their defense in the McIninch suit is the same as in this. By agreement the two suits were tried by the court at the same time and on the same evidence, and in like manner are submitted together here.

There are four lots mentioned in the pleadings—21, 22, 23, and 24—but it appeared in evidence that lots 21 and 22 had been sold under a foreclosure sale under another mortgage (or deed of trust) given by Fetzner, and the title to those two lots under that foreclosure sale having been acquired by the plaintiffs, the finding and decree of the court as to those two lots were in their favor, and there is no appeal from that part of the decree. As to the other two lots, 23 and 24, the decree was in favor of the defendants Mrs. Schall and Mrs. Young, and the plaintiffs appealed. One Charles Klaubus is named in the petition as a defendant, and he was brought in by an order of publication, but he did not appear, and the decree is that he has no interest in the land; his one-third, if he had such, is decreed to the plaintiffs. We infer that there were three heirs to Fetzner, namely, Klaubus, Mrs. Schall, and Mrs. Young. The adverse possession of plaintiffs since 1889 would bar the right of Klaubus, who was not under any disability, and that probably accounts for his nonappearance in the case.

The court was requested to make a finding of the facts and did so. The material facts found by the court are as follows: Benjamin Fetzner was the owner of the property. On March 1, 1872, Fetzner and wife executed the mortgage already mentioned. At that time the lots were inclosed by a fence and there were a few fruit trees on them, but no other improvements. In March, 1874, Mentzel acquired title under a foreclosure sale under a deed of trust executed by Fetzner to certain other property on which were situated a residence and a soap factory just across the street from the lots in question. He took possession of the property he so acquired, and about the same time took possession, also, of the four lots mentioned in these pleadings, using these lots for pasturage purposes; he and his tenants remained in possession of these lots not exceeding five years. In the later years of the occupancy of these lots by Mentzel and his tenants the fence began to decay and continued to do so, so that in 1879 it had entirely disappeared, and from that time there was no visible evidence of ownership or occupation of these lots until 1889. Mentzel died in 1876; Fetzner died in 1881. In 1878 the children and heirs of Mentzel instituted a suit for partition of his real estate and included in their petition the lots in controversy in this suit. In that proceeding those lots were set apart to Mrs. Cornwell, one of the heirs of Mentzel. Fetzner...