Kidd v. Schmidt, 36067.

• Court: United States State Supreme Court of Missouri
• Citation: 136 S.W.2d 72
• Docket Number: No. 36067.,36067.
• Parties: EARL KIDD and EVELYN KIDD, Appellants, v. FRED SCHMIDT.
• Decision Date: 23 January 1940

136 S.W.2d 72

EARL KIDD and EVELYN KIDD, Appellants, v. FRED SCHMIDT.

No. 36067.

Supreme Court of Missouri.

Division One, January 23, 1940.

Appeal from Circuit Court of St. Louis County. — Hon. Julius R. Nolte, Judge.

REVERSED AND REMANDED.

Anderson & Whittington for appellants.

(1) The decree is beyond the scope of the pleadings, defendant being a stranger to the record title and plaintiffs' grantor not being a party to the suit. Henry v. Bank of Wentworth, 302 Mo. 684, 259 S.W. 462; State ex rel. v. North St. L. Trust Co., 122 S.W. (2d) 909; Barton v. Walker, 165 Mo. 25, 65 S.W. 293; 21 C.J. 266, 267. (2) The answer did not raise any equitable defense, nor the cross bill set up any cause justifying the intervention of equity. Sec. 1365, R.S. 1929; Hecker v. Bleisch, 319 Mo. 149, 3 S.W. (2d) 1008. (a) Failure to carry out contract to support for life does not divest plaintiff's title under the conveyance. Anderson v. Gaines, 156 Mo. 664, 57 S.W. 726. (b) Failure to record the alleged contract was not fraud because: Failure of a promise to perform in the future is not fraud. Grand Lodge v. Massachusetts B. & Ins. Co., 324 Mo. 938, 25 S.W. (2d) 783; Reed v. Cooke, 331 Mo. 507, 55 S.W. (2d) 275. Defendant was not damaged by such failure, since his rights would not have been increased by a recording. Anderson v. Gaines, 156 Mo. 664, 57 S.W. 726. The contract could avail defendant nothing, since it had become merged in the deed, and since its provisions were void as being in derogation of the grant. Employers' Indemnity Corp. v. Garrett, 327 Mo. 874, 38 S.W. (2d) 1049; Barger v. Healey, 276 Mo. 145, 207 S.W. 499; Burk v. Walton, 337 Mo. 781, 86 S.W. (2d) 92; Clark v. Skinner, 334 Mo. 1190, 70 S.W. (2d) 1094. (c) Promise to reconvey, not supported by consideration, cannot be urged as altering the effect of the prior conveyance. Metropolitan Paving Co. v. Brown-Crummer Inv. Co., 309 M. 638, 274 S.W. 815; Church v. Combs, 332 Mo. 334, 58 S.W. (2d) 467. (d) To support a plea of fraud there must be a tender of the consideration and an offer to put plaintiffs in statu quo. First Methodist Church v. Berryman, 303 Mo. 475, 261 S.W. 73; Fry v. Piersol, 166 Mo. 429, 66 S.W. 171; Thompson v. Cohen, 127 Mo. 215, 29 S.W. 885; Girard v. St. Louis Car Wheel Co., 123 Mo. 358, 27 S.W. 648, 25 L.R.A. 514, 45 Am. St. Rep. 556. (e) An adequate remedy at law is apparent and precludes the exercise of equity jurisdiction. Buckley v. Maupin, 125 S.W. (2d) 820; Anderson v. Gaines, 156 Mo. 664, 57 S.W. 726. (3) Error in decree is jurisdictional, appears on the record and may be raised on appeal without previous motion or exception. Hecker v. Bleisch, 319 Mo. 149, 3 S.W. (2d) 1008; Congregation B'Nai Abraham v. Arky, 323 Mo. 776, 20 S.W. (2d) 899. (4) The answer raises no defense to plaintiffs' right of possession, the general denial being subject to and superseded by defendant's pleaded admission of that right. Farmers & Traders Bank v. Kendrick, 108 S.W. (2d) 62; Dickey v. Porter, 203 Mo. 1, 101 S.W. 586.

David B. Russell for respondent.

BRADLEY, C.

This cause was commenced in two counts. The first was in ejectment to recover possession of two lots in Times Beach, St. Louis County, and the second count which was dismissed, was to enjoin defendant from further building operations on the premises which might result in liens for work and material. The ejectment count is conventional in form and fixes December 5, 1935, as the date of unlawful entry. The answer to the first count (ejectment) is a general denial and allegations about the same as in a cross petition (hereinafter set out) filed by defendant to cancel a deed conveying the two lots to plaintiffs, and for other relief. So far as appears here, no reply was filed. The court found for defendant in the ejectment case and also on his cross petition, and plaintiffs appealed.

Plaintiffs (appellants here) have brought up the record proper only, and defendant (respondent here) has not filed a brief. As stated, the ejectment count is conventional in form, and it is not necessary to set it out. The cross petition follows:

"Defendant, further answering, and as and for his cross bill herein states: That on and for a long time prior to the 4th day of December, 1935, defendant was the owner in fee simple and in possession of the certain real estate mentioned and described in plaintiff's petition.

"That shortly prior to said date defendant made and entered into a contract in writing with plaintiff, Earl Kidd, by the terms of which said plaintiff promised and agreed that in consideration of the conveyance to him of the title to said described real estate he would permit defendant to occupy and reside on said real estate, and he to furnish to defendant food, clothing and proper support, maintenance for the remainder of defendant's life, and in pursuance of the terms of said contract defendant, on or about the said 4th day of December, 1935, caused (Italics ours) the title to said real estate to be conveyed to said plaintiffs; that thereafter, and until on or about the 25th day of March, 1936, plaintiff, Earl Kidd, performed said contract on his part, at which time said Earl Kidd notified defendant that he was unable to longer perform his part of said contract and that he would reconvey the title to said property to defendant; and at all times since said date said plaintiff, Earl Kidd, has failed, neglected and refused to comply with or perform any of the terms of said contract, and has wrongfully and fraudulently failed to reconvey the title of said property to defendant.

"That at the time of the conveyance of the title to said real estate to said plaintiffs and the execution of said contracts said plaintiff promised and agreed with defendant, as a part of the consideration of said conveyance, to cause said conveyance, together with said contract, to be recorded in the recorder's office of St. Louis County, Missouri, in order that defendant's rights and interests in the premises be fully protected, yet while said plaintiff caused said conveyance to him to be recorded, and informed defendant that he had done likewise to said contract, in furtherance of a design and intent on his part to deceive, cheat and defraud this defendant and to wrongfully and fraudulently deprive defendant of the title to said property, said plaintiff has at all times since its execution fraudulently failed and neglected to cause said contract to be recorded as aforesaid.

"That on the 12th day of April, 1936, the house and residence on said real estate was destroyed by fire, and defendant, believing said plaintiff's statement previously made to him that he would no longer perform his part of said contract and that he would reconvey said property to defendant, and relying thereon, by defendant's own efforts and the charity of his friends and neighbors, erected another dwelling on said property, and although plaintiffs well knew of the building of said residence, they made no complaint or objection to the erection of said building and made no claim of any interest or title to said real estate until the building was completed; that on the 20th day of July, 1936, when said plaintiff, Earl Kidd, notified defendant to desist further acts of ownership on said property.

"Defendant further states that the plaintiffs herein are insolvent and defendant is without adequate remedy at law.

"Wherefore, defendant prays that said conveyance so executed on or about the 4th day of December, 1935, to said plai...