Klaber v. Booth

• Decision Date: 11 February 1932
• Docket Number: No. 27247.,27247.
• Citation: 49 S.W.2d 181
• Parties: KLABER et al. v. BOOTH et al.
• Court: Missouri Supreme Court

49 S.W.2d 181

KLABER et al. v. BOOTH et al.

No. 27247.

Supreme Court of Missouri, Division No. 1.

February 11, 1932.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Suit by Fred W. Klaber, Administrator, and another, against Ida B. W. Booth and others. From a judgment for plaintiffs, defendants appeal.

Affirmed.

J. M. Johnson, C. W. Prince, J. N. Beery, and Walter A. Raymond, all of Kansas City, for appellants.

Henry S. Conrad, L. E. Durham, and Hale Houts, all of Kansas City, for respondents.

HYDE, C.

This is a suit to set aside and cancel a sheriff's deed, and subsequent conveyances of the tract known as the Kinloch property, and enjoin Dr. Annie Scott from interfering with plaintiffs' possession thereof. This case grows out of the facts stated in the opinion of this court in the case of Branner v. Klaber (Mo. Sup.) 49 S.W.(2d) 169, and the circumstances hereinafter referred to, which transpired after that case was filed. Prior to the filing of that suit, Dr. S. W. Scott had executed, acknowledged, and delivered on June 17, 1919, a deed to the Kinloch property, which had been conveyed to him by Dr. Annie Scott, conveying the same to his wife, Sarah D. Scott, and daughter, Helen Scott Jaccard. The deed recited a consideration of one dollar and love and affection. The evidence of the plaintiffs was that Dr. S. W. Scott intended to convey this property to his daughter as a wedding present, when she was married June 18, 1919, but that his wife objected to this, because she claimed he owed her about $30,000 for advances of her own money, which she had loaned to him and which he had used in his own enterprises. The deed was then made by Dr. S. W. Scott to both his wife and daughter, and Mrs. Scott accepted this, and conveyances of other property, in settlement of his indebtedness. The deed was not recorded until August 7, 1920, which was after the suit of Dr. Annie Scott was commenced against Dr. S. W. Scott, and lis pendens recorded in connection therewith.

After the first appeal in Booth v. Scott, 276 Mo. 1, 205 S. W. 633, was decided, against Dr. S. W. Scott and his codefendants, by this court, the cost of printing the abstract of the record was taxed against them on July 5, 1918. On January 17, 1922, a fee bill was issued against them in the sum of $411.38, from this court, for this cost. On February 6, 1922, while the Booth Case, after being remanded, was pending in this court on a second appeal, a certified copy of this fee bill was filed in the circuit court of Jackson county and an execution was then issued on it, from that court. Dr. S. W. Scott and the other defendants had given an appeal bond for the judgment in favor of Mrs. Booth and all costs which had been filed and approved on June 14, 1921. Without any demand upon Dr. S. W. Scott or the other defendants for payment or any notice to any of them, the sheriff levied upon and sold at execution sale the right, title, and interest of Dr. S. W. Scott in the Kinloch property. Defendant Charles R. Meyer bid in the property for $420 at the execution sale on March 18, 1922, and received a sheriff's deed for it. Meyer and his wife conveyed the land to defendant L. A. Smith. Smith executed a deed of trust to Meyer as trustee to secure a note for $500 made to defendant Lanie Lyne. Smith thereafter conveyed the land to Dr. Annie Scott. She said she paid Meyer $936 for this conveyance. She recorded this deed, went out to the land, put up a tent on it, and took possession. The deed from Meyer to Smith was recorded March 30, 1922, which was the date of the deed from Smith to Dr. Annie Scott. After living on the property in the tent for a short time, Dr. Annie Scott built a small one-room house on the land and was living there when this and the other two cases, involving the land, were tried in the circuit court of Jackson county. It was shown that, at the time of the execution sale, Dr. S. W. Scott owned and held title in his own name to other real estate in Jackson county, free from incumbrance and subject to execution, worth much more than the amount of the execution, and also a large amount of personal property.

Dr. Annie Scott filed an answer, in which she claimed title to the land under the execution sale and also set up by cross-bill all the allegations of her petition in the original suit brought by her against Dr. S. W. Scott. Plaintiffs' reply contained the same allegations set up by Dr. S. W. Scott's answer in the original suit. The trial court entered judgment decreeing plaintiffs to be the owners of the land and entitled to possession of the same; ordered the cost bill in the Booth Case satisfied out of the $420 which had been paid into court by Dr. S. W. Scott; and found against defendant Dr. Annie Scott on her cross-bill.

The judgment made no finding of facts, but in the memorandum opinion, filed with this judgment, the court found that the conveyance of the land by Dr. S. W. Scott to his wife and daughter was a voluntary conveyance; that Dr. S. W. Scott was the owner of the land because Dr. Annie Scott's right to recover it was barred by the statute of limitations; that, except for the claim of Mrs. Booth and the cost bill, Dr. S. W. Scott had no other creditors and there was no...