Kober v. Kober

• Decision Date: 30 December 1929
• Docket Number: No. 28047.,28047.
• Citation: 23 S.W.2d 149
• Parties: BERTHA KOBER, Appellant, v. JOSEPH KOBER, JULIA KOBER and CAROLINE WEISSKOPF.
• Court: Missouri Supreme Court

23 S.W.2d 149

BERTHA KOBER, Appellant, v. JOSEPH KOBER, JULIA KOBER and CAROLINE WEISSKOPF.

No. 28047.

Supreme Court of Missouri, Division One.

December 30, 1929.

Appeal from Circuit Court of City of St. Louis — Hon. John W. Calhoun, Judge.

REVERSED AND REMANDED.

Louis Mayer and Irl B. Rosenblum for appellant.

(1) Plaintiff's cause of action to have dower set forth and to have the court ascertain and determine her estate, title and interest in and to her husband's real estate, did not accrue until the death of her husband. Farris v. Coleman, 103 Mo. 352; Keeney v. McVoy, 206 Mo. 60; First Nat. Bank v. Kirby, 190 S.W. 599; Hach v. Rollins, 158 Mo. 182. (2) The Statute of Limitations referring to real estate does not apply to plaintiff's cause of action, because plaintiff's cause of action is in the nature of an equitable suit to ascertain title and quiet title. Armor v. Frey, 253 Mo. 447; Bramhall v. Bramhall, 216 S.W. 769; Kline v. Groeschner, 219 S.W. 651. (3) Statutes of limitations, unless otherwise provided by law, apply to legal actions only. Virginia Min. Co. v. Clayton, 233 S.W. 218. (4) Statutes of limitations will commence to run in suits brought in equity based on fraud only from the time of the discovery of the fraud and this independent of our ten- and five-year statutes. Thomas v. Matthews, 51 Mo. 107; McLain v. Parker, 229 Mo. 90; Davis v. Cummings, 195 S.W. 756; Maynard v. Doe Run, 265 S.W. 99. (5) Improper acts prevented the commencement of this action, and thus tolled the Statutes of Limitations. Sec. 1334, R.S. 1919; State ex rel. v. Yates, 231 Mo. 276. (6) The wife has ten years from date of husband's death to institute an action for the recovery of her dower in real estate. Sec. 359, R.S. 1919; Laws 1927, p. 99. (7) The court should so construe statutes as to aid the dower right, rather than to defeat it. Keeney v. McVoy, 206 Mo. 60; Klocke v. Klocke, 276 Mo. 572.

Taylor, Mayer & Shifrin for respondents.

(1) Appellant has no right of action to have dower assigned to her unless she first shows she has a right of dower in the property in question. By her affirmative statement that she joined her husband in signing and executing, November 8, 1901, a deed to the property in question she shows that she had no such right. Bush v. Piersal, 183 Mo. 500. (2) The demurrer raised the question of the Statute of Limitations as barring her right to set aside the deed of November 8, 1901. If that right is barred by the statute there is nothing further to consider. The statute bars the right. It is appellant's object to have dower in this property awarded to her. So far as she is concerned that is her primary object. The first necessity, so far as she is concerned, is to have that deed set aside. To accomplish that she alleges fraud by her husband in its procurement and improper acts and duress on his part for nearly twenty-four years in concealing the matter from her, she knowing all the time, however, that she had signed an instrument affecting the property in question. (3) This is an action as to real estate and is governed by the provisions of Art. 8, Chap. 12, R.S. 1919. The cause of action to set aside the deed of November 8, 1901, accrued to her on that date, and is, therefore, barred by limitations. Secs. 1305, 1308, R.S. 1919; Smelser v. Meier, 271 Mo. 178; Parish v. Casner, 282 S.W. 392. (4) Neither failure to discover the fraud, nor improper acts nor fraudulent concealment, apply to the limitations imposed by the provisions of Article 8. No such actions will toll the statute whether the question be raised either in a suit at law or in equity. Parish v. Casner, supra; Turnmire v. Claybrook, 204 S.W. 178. (5) Whether the instant case be one at law or in equity makes no difference. In Missouri there is but one form of action denominated civil, and the limitation statutes apply to all actions whether before the adoption of the code they had been denominated legal or equitable. Marshall v. Hill, 246 Mo. 1; Burrus v. Cook, 215 Mo. 496; Hoester v. Sammelmann, 101 Mo. 619; Lile v. Kincaid, 160 Mo. App. 297. (6) The provisions of Section 1334 are not available to appellant in this action. Even if available, in such an action as is now before this court, the improper actions complained of would have to be the actions of the defendants. There is no complaint in the petition of any improper actions or concealment on the part of these defendants (respondents) or either of them. Wells v. Halpin, 59 Mo. 92.

RAGLAND, J.

Defendants demurred to plaintiff's petition, on the grounds: (1) that it did not state a cause of action; and (2) that on its face it disclosed that the alleged cause of action was barred by the Statute of Limitations. The demurrer was sustained: plaintiff declining to further plead, a judgment appropriate to that situation was duly entered. From such judgment plaintiff prosecutes this appeal.

The petition was as follows:

"Plaintiff, for her cause of action, states that she is the widow of Leopold Kober, deceased, who died on or about the 19th day of September, 1925; that she was lawfully wedded to the said Leopold Kober on the 21st day of October, 1900, and at all times hereinafter mentioned was the wife of said Leopold Kober; that defendants Joseph Kober and Caroline Weisskopf are children of Leopold Kober by a former marriage.

"Plaintiff further states that on and prior to the 8th day of November, 1901, the said Leopold Kober was the owner of the following described parcels of real estate located in the city of St. Louis, Missouri, to-wit: [Here follow descriptions under paragraphs numbered I, II and III.]

"That, on and prior to November 8, 1901, the said Leopold Kober falsely represented and stated to plaintiff that he needed money and that the only way he could raise same was by borrowing it from one Emma Bloch, wife of Leo Bloch, both residents of the city of St. Louis, Missouri; that in order to consummate said loan it was necessary that plaintiff join with her husband in signing certain papers; that said representations were falsely made and known to be false by the said Leopold Kober and were made for the purpose of inducing plaintiff to part with any right, title or interest which she might have in and to said property, and not for the purpose falsely stated by Leopold Kober to plaintiff as aforesaid.

"Plaintiff further states that, relying upon the aforesaid representations and being ignorant of the English language, and not understanding the import of her act, and not intending to waive any of her right, title and interest to said property, and not understanding and realizing that she was signing an instrument conveying her interest in and to said property, she signed on November 8, 1901, jointly with the said Leopold Kober, a warranty deed to the aforesaid property to the said Emma Bloch, wife of Leo Bloch.

"Plaintiff further states that she has learned of the fraud and deceit of her said husband Leopold Kober and of the nature of the document she signed since the date of his death; that the defendants with Leopold Kober fraudulently conceived the plan of defeating and wrongfully and unlawfully conspired to defeat any dower interest or other interest which plaintiff might have in and to said property, and thereupon defendants and Leopold Kober, pursuant to said fraudulent purpose and plan, procured the following deeds to said property, executed by the said Emma Bloch and Leo Bloch, her husband, to-wit:

"Deed dated November 9, 1901, to Leopold Kober for life with remainder to Joseph Kober in the aforesaid property of an undivided one-half of said property.

"Deed dated November 9, 1901, to Leopold Kober for life with the remainder in trust to him for the benefit of Caroline Weisskopf of an undivided one-half of said property, said Caroline Weisskopf to have the right to sell her interest in said property.

"Plaintiff further states that all of the aforesaid deeds were made and executed without any consideration passing from any of the parties thereto, and without consideration passing to her.

"Plaintiff further states that, pursuant to said fraudulent purpose and conspiracy, the defendants and Leopold Kober executed a deed in September, 1919, to Loy Lange Box Company of the city of St. Louis, Missouri, of one of the parcels of the aforesaid mentioned property, to-wit: That described as lots 1, 2, 3, 4, 5, 6 and 7 in Block 720 of the city of St. Louis, Missouri; that said deed was executed without the consent or knowledge of plaintiff and that plaintiff did not at any time waive any of her right, title and interest in and to said property; that defendants and Leopold Kober received for said property the sum of $11,000 subject to a deed of trust, leaving the net price received by them for said property of $6,699.38.

"Plaintiff further states that, on or about October 27, 1910, pursuant to the aforesaid purposes and conspiracy, the said Leopold Kober furnished to Joseph Kober the purchase price with which to buy a parcel of real estate located in the city of St. Louis, Missouri, and described as lots 7 and 8 in Block 1678 of said city, together with improvements thereon, known as 1917-1921½ Biddle Street; that the said Joseph Kober took the title to said property in his own name, but for the use and benefit of his father, Leopold Kober, all with a view to defeat any right, title and interest in and to said property which the plaintiff might thereafter have, and all pursuant to the aforesaid fraudulent conspiracy; that thereafter, pursuant to said fraudulent purpose and plan, the said Joseph Kober executed and delivered a deed to Caroline Weisskopf of an undivided one-half interest in said property; that the rents from said property were collected and retained by said Leopold Kober during his lifetime and that said property was in fact the property of said Leopold Kober and not of Joseph Kober and Caroline Weisskopf.

"Plaintiff further states that, pursuant to ...