Holmes v. Shepard

• Decision Date: 31 March 1872
• Parties: CHARLOTTE HOLMES et al., Appellants, v. ELIHU H. SHEPARD, Respondent.
• Court: Missouri Supreme Court

49 Mo. 600

CHARLOTTE HOLMES et al., Appellants,

v.ELIHU H. SHEPARD, Respondent.

Supreme Court of Missouri.

March Term, 1872.

Appeal from St. Louis Circuit Court.

E. Casselberry and A. Hamilton, for appellants.

The defendant was not authorized to proceed ex parte in the appraisement. (Peters v. Newkirk, 6 Cow. 103; Elmendorf v. Harris, 23 Wend. 631-2; Ryder v. Jenny, 2 Robertson, N. Y., 58, 70; Caldw. Arb. 119, 120-1; Merrifield v. Cobleigh, 4 Cush. 184; Wray v. Rhinelander, 52 Barb. 566; Anderson v. The City of St. Louis, 47 Mo. 479.) When from any want of foresight of the parties, or other mistake or accident, there would be a failure of justice, it is the duty of a court of equity to supply the defect or furnish the remedy. (Quick v. Stuyvesant, 2 Paige, 84; Chase v. Barrett, 4 Paige, 148; Douglass v. Viele, 3 Sandf. Ch. 439, 448; 1 Sto. Eq. 78, note 4; Backus' Appeal, 58 Penn. 186, 194; Swift v. Larrabee, 31 Conn. 225, 237.) An infant cannot bind himself by a submission of his rights to arbitration, nor can this want of capacity be cured even by the chancellor, unless there is a suit pending in which the infant is a party. (Jones v. Payne, 41 Ga. 23; Bill. Awards, 34; 1 Am. Lead. Cas., 5th ed., 300 et seq.; Perry Trusts, 52.)

Glover & Shepley, for respondent, cited Brown v. Haines, 12 Ohio, 1; 2 Sto. Eq. 100, § 771; Kendall v. Almy, 2 Sumn. 293; Rogers v. Saunders, 16 Me. 97; Lewis v. Woods, 4 How., Miss., 86; Stevenson v. Dunlap, 7 Monr. 142; Tyl. Inf. 158, 172, §§ 108, 119; Scott v. Houghton, 2 Vernon, 560.

ADAMS, Judge, delivered the opinion of the court.

The defendant leased to Jotham Bigelow, Jr., for fifty years, a lot of ground in the city of St. Louis. By the terms of the lease, the rental of the ground for the first ten years, ending the 12th of April, 1870, was to be $1,280 per year, payable in equal quarterly installments of $320 each, on the 12th day of July, October, January and April. For the second period of ten years, that is, from the 12th day of April, 1870, to the 12th day of April, 1880, a sum equal to six per centum per annum on the valuation of the demised premises, exclusive of the buildings, was to be paid as the rent, which valuation, by the terms of the lease, was to be fixed and determined by the parties on the first Monday of April, 1870, in case they should be able to agree on the same; but in case they should fail to agree thereon, then each of them was to procure the attendance of one disinterested freeholder of the city of St. Louis, a resident citizen, who should come near the southeast corner, between the hours of twelve and one o'clock of the Tuesday following said first Monday of April, 1870, and there and then assess the value of the demised premises at a fair valuation thereof. If the two disagreed they were to select an umpire, etc.

There was a clause in the lease to the effect that the words “party of the first part,” or “party of the second part,” or “lessor,” or “lessee,” as used in the lease, should mean said parties or persons respectively, and their heirs and assigns and legal representatives. After the lease was made, and long after the expiration of the first ten years, the lessee, Bigelow, sold and assigned the premises and leasehold to Robert Holmes, the ancestor of the plaintiff, who died in August, 1863, leaving the plaintiffs the heirs and distributees of his estate. It was admitted that final settlement of the estate of Robert Holmes had been made in the Probate Court of St. Louis county in March, 1869. Some of the plaintiffs are still minors and joint owners of the leasehold estate with the other plaintiffs.

On the 10th of April, 1870, without any effort to agree with the plaintiffs or any of them, and without notice to them, the defendant proceeded to appoint two appraisers to value the leased premises, and these appraisers accordingly made their valuation and delivered a copy of the same to the parties. The valuation as made by these assessors was $39,620.33. This suit was brought to have this appraisement declared fraudulent and void as to the plaintiffs, and to have the rent of the second period of the term fixed under the direction of the court as a court of equity. On the trial of the case many witnesses were examined as to the value of the ground, none of whom put the valuation low enough to reduce the rent below the amount agreed to be paid for the first ten years.

The plaintiffs, as distributees of Robert Holmes' estate, on final settlement of that estate, became the assignees of this leasehold estate within the meaning of the terms of the lease, and, as such, they or their...