Hoester v. Sammelmann

• Decision Date: 17 November 1890
• Citation: 14 S.W. 728,101 Mo. 619
• Parties: HOESTER v. SAMMELMANN et al.
• Court: Missouri Supreme Court

14 S.W. 728

101 Mo. 619

HOESTER v. SAMMELMANN et al.

Supreme Court of Missouri.

November 17, 1890.

LIMITATION OF ACTIONS — CONCEALMENT OF CAUSE OF ACTION.

1. Under Rev. St. Mo. 1879, § 3229, limiting to 10 years "actions for relief not herein otherwise provided for," a suit to reform a trust-deed, inserting as part of the lands conveyed a tract omitted by mistake, is barred in 10 years from the execution of the deed though the lands were then, and long after, subject to a life-estate, the trust-deed purporting to convey the reversion only.

2. Rev. St. Mo. 1879, § 3244, provides that "if any person by absconding or concealing himself or by any other improper act prevent the commencement of an action, the action may be commenced within the time limited after the commencement of such action shall have ceased to be so prevented." Held, that the case is not brought within that section by averments that the trust-deed was given in 1866, and foreclosed in 1874; that plaintiff was, by the acts of the grantor and his co-defendants, prevented from making an investigation, and kept in ignorance of the mistake; that, from 1874 to 1883 the co-defendants were continually trying to buy plaintiff's interest, always recognizing him as the owner of the reversion in all the lands subject to the life-estate; and that the grantor claimed no interest until

1883, when the co-defendants discovered the mistake, and then, in fraud of plaintiff's rights, took from the grantor a conveyance of the omitted tract.

Error to circuit court, St. Charles county; W. W. EDWARDS, Judge.

This proceeding was instituted in February, 1887. Prior proceedings in ejectment and equity had been instituted in 1884 and 1885, but afterwards dismissed. The following will suffice as a summary of the petition herein: In his petition plaintiff asks the court to insert in a deed of trust executed by Bernard Sammelmann to Albert Deemar in favor of one Peter Hoffman, December 25, 1886, "another tract of land" belonging to said Bernard Sammelmann, and inherited from his father, William Sammelmann, subject to a life-estate of his mother; and it is stated that the life-tenant lived on the premises, and in the possession thereof, until her death in the year 1881. No fraud is alleged; but the petition says that at the time of the making of said deed of trust it was understood and agreed by and between said Bernard Sammelmann and the said Peter Hoffman that the same was to and did cover and include all the right, title, and interest of said Bernard Sammelmann, as heir of the said William Sammelmann and as assignee of his brother, in and to all the real estate of said William Sammelmann, deceased. In 1868, Peter Hoffman assigned said deed of trust and note to plaintiff. No fraud is alleged in the transaction. The petition expressly states that at the time of the assignment and transfer of said note and deed of trust to plaintiff the said Peter Hoffman believed and so represented to plaintiff that the said deed of trust securing said note did cover and include all the interest of said Bernard Sammelmann, being one-third of all the lands of the said William Sammelmann, and that such representation was then and there agreed and assented to by the said Bernard Sammelmann, etc. In 1874, plaintiff caused Albert Deemar, trustee, to sell under the deed of trust, and plaintiff became the purchaser, and received a trustee's deed therefor. Plaintiff then alleges that, from the time he purchased said deed of trust and note in 1868, until 1883, he was ignorant of the fact that the whole of the land of Bernard Sammelmann was not included in said deed of trust, and then for the first time the bill tries to connect defendants Julius and Daniel Sammelmann with that mistake in the following language: "Plaintiff further states that by the acts and doings of the above-named defendants, Julius, Daniel, and Bernard Sammelmann, from the time of the purchase of said note and deed of trust (1868) up to the year 1883, he was prevented from making any investigations as to the correctness of...