Kohnke v. Kohnke

• Decision Date: 02 April 1923
• Docket Number: No. 22702.,22702.
• Citation: 250 S.W. 53
• Parties: KOHNKE v. KOHNKE et al.
• Court: Missouri Supreme Court

250 S.W. 53

KOHNKE v. KOHNKE et al.

No. 22702.

Supreme Court of Missouri, in Banc.

April 2, 1923.

Appeal from Circuit Court, Buchanan County; W. H. Utz, Judge.

Bill by Carl E. Kohnke against Vervie Kohnke and Augusta Kohnke for partition. From a judgment in favor of defendant Vervie Kohnke and against Augusta Kohnke, she appeals. Affirmed.

Ardey Gabbert, of St. Joseph, for appellant. L. E. Thompson, of St. Joseph, for Vervie Kohnke.

Joseph Goldman, of St. Joseph, for respondent.

Statement.

WOODSON, J. (dissenting).

The plaintiff brought this suit in the circuit court of Buchanan county against Vervie Kohnke and Augusta Kohnke asking for the partition of certain real estate particularly described in the petition and located in the city of St. Joseph. The findings of the court were for the plaintiff and the defendant Vervie Kohnke, and against the defendant Augusta Kohnke. The defendant, after moving unsuccessfully for a new trial, duly appealed the cause to this court.

The facts of the case are practically, if not literally, undisputed, and are as follows: On August 29, 1916, Augusta Kohnke, appellant herein, entered into a contract with her son, respondent herein, and his then wife, Vervie Kohnke, defendant herein, whereby said appellant attempted to so contract with both of said persons that they would thereafter take care of her and provide for her during her lifetime, and that they would perform other duties and make certain expenditures, chief among which was the payment of $150 to another son of appellant, in the event of his return to St. Joseph, Miss. The appellant conveyed 55 feet off of the east ends of lots 1, 2, and 3 in block 27, in St. Joseph Extension addition, an addition to the city of St. Joseph, Buchanan county, Mo. This was her home. It was worth $2,500. It consisted of all her resources and property. She was residing on this property at the time of the contract, resided there after the contract, and is still residing therein.

The respondent and the defendant Vervie who were husband and wife, on August 29, 1916, entered into the aforesaid contract with the appellant, and upon their part signed and executed a reciprocal agreement whereby they covenanted and agreed to take care of and provide for the appellant during her lifetime, and to do and perform other provisions and conditions of them required by her as the consideration for the entering into said contractual relations. This contract and the deed were together one and the same transaction. The parties entered into the performance of this contract upon its execution, and continued therein until January 29, 1919. On this last date Vervie Kohnke abandoned her part of the contract and left the property and never returned. She was divorced from the respondent on November 22, 1919. On December 22, thirty days after her divorce, she married. For months before her divorce she never gave any care or paid any money to the appellant. Vervie Kohnke never performed all her duties at any time. She is claiming title to the land through the conveyance. Respondent claims title and property by virtue of the transaction. The respondent claims his right to the property when his mother dies. This suit was instituted on November 21, 1919.

The defendant Augusta Kohnke filed an answer and cross-bill setting out the foregoing facts and many more, asking for a forfeiture of the conveyance, and a cancellation of the deed made by her to plaintiff and defendant Vervie Kohnke, and that the title to said real estate be divested from the said Carl E. and Vervie Kohnke, and revested in her, because of the breach of the terms of the contract of support before mentioned.

At the close of all the evidence, the court, as before stated, found against the defendant Augusta Kohnke, and dismissed her bill without prejudice.

Opinion.

At the very threshold of this case we are met with an insurmountable obstacle to the maintenance of this action, and that is, Augusta Kohnke is in the possession of the premises and was at the time of the institution of the suit claiming title thereto, against all other parties to the gilt.

The law is well settled that—

"While at common law it was necessary for the grantor to enter upon the land to work a forfeiture on condition broken, the modern rule is that the bringing of an action of ejectment will operate as a common-law entry." Ruddick v. St. Louis, Keokuk & North Western Ry. Co., 116 Mo. 25, 22 S. W. 499, 38 Am. St. Rep. 570.

According to this well-known rule, it was not necessary for Augusta Kohnke to enter for condition broken or to bring ejectment, for the obvious reason that she was already in possession at the time of the institution of this suit, claiming title to the property, and consequently it would have been a senseless thing for her to have re-entered possession or sued in ejectment for the possession when she was already in the possession of the premises. And under that state of facts, the law is that one out of possession cannot maintain partition of real estate, where another is in the exclusive possession claiming title. Wommack v. Whitmore, 58 Mo. 448; Shepperd v. Fisher, 206 Mo. 208, loc. cit. 249, 103 S. W. 989; Coberly v. Coberly, 189 Mo. loc. cit. 16, 87 S. W. 957.

The record is not clear as to whether or not the plaintiff was also actually in possession of the premises at the time he brought the suit, because that is wholly immaterial under the facts of this case, for the reason the defendant Augusta's possession at that time, under the facts of this case, was tantamount to a re-entry for condition broken, and she might have brought execution for the land, even at common law, and especially she had that right under the more liberal rule of law in force in this State. Ruddick v. St. Louis, K. & N. W. Ry. Co., supra.

Under the disputed facts of this case the plaintiff is not entitled to a recovery, and. therefore the judgment is reversed and remanded to the circuit court, with directions to dismiss the plaintiff's petition and to tax the costs of the case against him.

ELDER, J., concurs.

JAMES T. BLAIR, J., dissents. GRAVES, J., dubitante.

Transferred to court in banc.

DAVID E. BLAIR, J.

The action is in partition. The land involved is part of three city lots in St. Joseph, Mo., upon which a dwelling house is located. Plaintiff prevailed below, the land was ordered partitioned, and the cross-bill of defendant Augusta Kohnke was dismissed without prejudice.

The case originally fell to Division 1, wherein an opinion was written reversing the judgment and remanding the case, with directions to dismiss plaintiff's bill and to tax the costs against him. The opinion was not agreed to in Division 1, and the case was transferred to the court in banc for disposition, where the divisional opinion was rejected.

Plaintiff, Carl E. Kohnke, and defendant Vervie Kohnke were husband and wife on August 29, 1916, and were living in said dwelling house with defendant Augusta Kohnke, now appellant. She is plaintiff's mother and was well along in years awl feeble in health. The property in question constituted her entire estate. On August 29, 1916, appellant executed her warranty deed conveying said property to Carl and Vervie Kohnke as husband and wife. Said deed was in ordinary form, except it contained a clause as follows:

"Further provisions whereby this deed is transferred to the second parties is found attached hereto as follows in typewritten form."

The provisions referred to were contained in a typewritten sheet pasted to the above deed, as follows:

"State of Missouri, County of Buchanan—ss.:

"In addition to the aforesaid property, it is hereby understood and agreed by the under-signed parties that they take care of and provide for me during my lifetime. That also after my death that in addition to the above-described property all personal effects shall revert to the undersigned. It is also agreed that my son, Carl E. Kohnke, shall pay me $2 monthly for current expenses during my life.

"It is also hereby agreed by the undersigned that my son Carl E. Kohnke is to pay my son Gustave Kohnke, now in San Quentin, California, $150 providing that the last-named Gustave returns to St. Joseph, Mo. Otherwise the above-named sum shall remain a part of this transaction and revert back to the first-named Carl B. Kohnke.

                                       "Carl E. Kohnke
                                       "Mrs. Vervie Kohnke."
                

After the execution of the aforesaid deed and writing attached thereto, appellant continued to live in said house with her son, his wife, and their children until January 29, 1919, when Vervie Kohnke left her husband and thereafter obtained a divorce from him, with, custody of the children, and secured judgment against him for suit money, temporary alimony, and an allowance of $7 per week for the support and maintenance of the children. About a month after she secured the divorce, Vervie Kohnke married one Coleman. After January 29, 1919, Vervie Kohnke did nothing whatever in the way of performance of her contract for caring for and supporting appellant. The evidence of appellant tends to show that Vervie Kohnke performed the contract only partially and indifferently prior to the separation. There is no question that plaintiff performed the contract on his part to the best of his ability.

Plaintiff's petition was drawn on the theory that the divorce made himself and former wife tenants in common. He made appellant a defendant, and alleged the facts attending the conveyance to himself and wife and the contract for the care and support of appellant and performance in full to January 29, 1919, and abandonment of further performance by Vervie Kohnke on that date; that Augusta Kohnke claimed some interest in the property; that said property was not susceptible of partition in kind, and prayed sale of "the property and division of the proceeds.

Vervie Kohnke Coleman filed answer, admitting conveyance of the...