Henry Leidner Undertaking Co. v. Vogel

• Decision Date: 06 March 1923
• Docket Number: No. 17603.,17603.
• Citation: 251 S.W. 428
• Parties: HENRY LEIDNER UNDERTAKING CO. v. VOGEL et al.
• Court: Missouri Court of Appeals

251 S.W. 428

HENRY LEIDNER UNDERTAKING CO. v. VOGEL et al.

No. 17603.

St. Louis Court of Appeals, Missouri.

March 6, 1923.

Rehearing Denied April 3, 1923.

Appeal from St. Louis Circuit Court; Wm. H. Kifforen, Judge.

"Not to be officially published."

Action by the Henry Leidner Undertaking Company against Henry Vogel and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Henry H. Oberschelp, of St. Louis, for appellant.

John Cashman and Taylor R. Young, both of St. Louis, and T. T. Hinde, of Madison, Ill., for respondents.

ALLEN, P. J.

The petition herein alleges that plaintiff is a Missouri corporation, and that in 1897 one Frederick Vogel purchased and acquired from one Peterson, by warranty deed of date August 24, 1897, and duly recorded in the office of the recorder of deeds of St. Louis, certain real estate in said city, described in the petition. The petition then proceeds as follows:

"Said Frederick Vogel ever since was not only the record owner, but he also exercised all the rights of absolute ownership and appeared to plaintiff and the world as the sole exclusive owner thereof, and during his entire lifetime his absolute ownership was not disputed by any one and no one ever made any claim whatever thereto or to any part thereof. Firmly believing said Frederick Vogel to be the sole exclusive owner thereof at his request plaintiff, shortly before his death, advanced and loaned to him, July 13, 1914, $30; September 8, 1914, $30; January 18, 1916, $20, on which $20 was paid July 19, 1915, balance, $60, to pay taxes on said property and son's insurance, and furnished an ambulance, the reasonable charge for which was $5, and said Frederick Vogel requested plaintiff, in case of his death, to conduct his funeral and burial, and accordingly when he died, February 18, 1917, plaintiff conducted his funeral and burial, which took place on February 21, 1917, and plaintiff did and performed and furnished items and services in connection therewith as follows: One hearse, $12; seven carriages, $42; casket, $75; vault, $75; opening grave and evergreens, $8; embalming, $15; shaving $3; gloves and crepe, $3; newspaper death notice, $4.50; shirt, collars, and tie, $1.75. Said amounts are the reasonable charges for said respective items. Accordingly the total amount due for said cash advanced and loaned, ambulance, and funeral and burial is $304.45.

"Said Frederick Vogel left a last will, which was duly probated in the probate court of this city of St. Louis, March 3, 1917, in which he devised said real estate in fee to his widow, the defendant Regina Gigos Vogel, now known as Regina Gigos Vogel Sams, and appointed her executrix, and accordingly, on March 5, 1917, letters testamentary were granted to her by said probate court, the estate being numbered 47658. On June 15, 1917, said claim of plaintiff was duly allowed by said probate court against the estate of said Frederick or Fried-Eich Vogel, deceased, in said sum of $304.25. "Defendants Henry, Ernst, Charles. R. and Louis Vogel and May Vogel Schaefer, are the children, and the defendants Frederick, Charles H., Lillian, and Edna Vogel are the grandchildren of said Frederick Vogel and his first wife, Margaretha Vogel, and the sole surviving heirs of said Margaretha Vogel, who died intestate May 20, 1910, and none of said defendants nor said Margaretha Vogel ever made any claim to said real estate during the lifetime of said Frederick Vogel, but all allowed plaintiff and the world to believe that said Frederick Vogel was the sole, exclusive, absolute owner thereof, and it was not until after the death of said Frederick Vogel and after the probate of said will, in which he devised said real estate to his said second wife, the defendant Regina Gigos Vogel, and after the said allowance of plaintiff's said claim as aforesaid, that said defendants first made any claim to said real estate, which was in August, 1917, when a suit was brought in this circuit court of this city of St. Louis, cause numbered 11404, against the defendant Regina Gigos Vogel, individually and also as executrix of the estate of said Frederick Vogel, deceased, by all the other defendants in this suit, plaintiffs in said suit, and in said suit said circuit court, on March 22, 1920, rendered a judgment and decree declaring that said Frederick Vogel should have taken the title to said real estate in the naive of his first wife, Margaretha Vogel, that a resulting trust arose in her favor, that at her death she was the equitable owner in fee of said real estate, which upon her death descended to her said children and grandchildren (plaintiffs in said suit and named herein as defendants) as her surviving heirs at law, and that the title of said plaintiff in said suit to said real estate be confirmed unto them in fee, free from all claims of the defendant Regina Gigos Vogel.

"This plaintiff was in no wise a party to said suit, and knew nothing whatever of the aforesaid alleged rights or claims of said parties, and extended said credit and furnished all said items and services, believing and relying upon said Frederick Vogel being the sole, exclusive, absolute, undisputed owner of said real estate. All the personal property left by said Frederick was of very small value, namely, $50, and was used and disposed of in expenses of administration of his estate, and the aforesaid real estate was all the real estate he had, and upon the rendering of said judgment by said circuit court in said cause, said probate court, on the application of said executrix, made an order of no further process in said estate, and no part of plaintiff's claim has been paid, and each of the defendants refuse to pay the same or any part thereof.

"If said children and grandchildren of said Frederick and Margaretha Vogel had acted with due caution, and had made known their claims and alleged rights and interests in due time, and had not permitted said Frederick Vogel during all that time to appear to plaintiff and the whole world as the real and only, as well as the record, owner of said real estate, plaintiff would not have done what it did, and accordingly plaintiff, who is entirely innocent in the matter, was prejudiced by their aforesaid silence, delay, and negligence, and they are estopped from asserting their alleged rights, interests, and claim to said real estate as against plaintiff's aforesaid claim, rights, and interests. Plaintiff has no adequate remedy at law.

"Wherefore plaintiff prays that its aforesaid claim in the sum of $304.23, with interest thereon from June 15, 1917, be allowed and declared a lien against said real estate, superior to and ahead of any of the rights of any of the defendants, and that said real estate be subjected to the payment of plaintiff's said claim and interest and costs, and be sold to pay the same, and plaintiff prays for such further orders and relief as may be proper."

To this petition the defendants interposed demurrers. The trial court sustained said demurrers, and, plaintiff declining to plead further, final judgment was rendered on the demurrers in favor of the defendants, and the plaintiff has brought the case here by appeal.

The petition proceeds upon the theory that, by allowing the record title to the land in question to remain in Frederick Vogel, and thus permitting him to appear to be the true owner thereof, the children and grandchildren...