Lindell Real-Estate Co. v. Lindell

• Decision Date: 23 December 1895
• Citation: 33 S.W. 466,133 Mo. 386
• Parties: LINDELL REAL-ESTATE CO. v. LINDELL et al.
• Court: Missouri Supreme Court

33 S.W. 466

133 Mo. 386

LINDELL REAL-ESTATE CO. v. LINDELL et al.

Supreme Court of Missouri, Division No. 2.

December 23, 1895.

FRAUDULENT CONVEYANCES — ACTION TO SET ASIDE — DECREE — EFFECT — INNOCENT PURCHASER — ACTION TO RECOVER LAND — WHAT CONSTITUTES.

1. Though it appeared by the petition in an action by a purchaser of land at sheriff's sale to set aside a conveyance thereof by the debtor, for fraud, that the land was out of the jurisdiction of the court, objection on that ground was waived by defendants filing their answer and defending the suit.

2. A purchaser of land at execution sale brought an action against the debtor and his grantee to set aside a conveyance of land, for fraud. Held, that the decree setting the conveyance aside, and declaring the land subject to the judgment under which the sale was made, was not vitiated by the facts that the sale was void, and that plaintiff hence acquired no title thereunder.

3. The fact that a purchaser at sheriff's sale had knowledge of a prior unrecorded deed or declaration of trust did not preclude his grantee from being an innocent purchaser.

4. The circuit court of the city of S., in an action to have a declaration of trust declared void, decreed that defendants "be and they are hereby divested of all title to" the land, which was described as being in such city, when in fact it was in S. county. Held, that the effect of the decree was to declare the declaration of trust void.

5. An action for partition is not one for the recovery of lands, within Rev. St. § 6764, providing that no such action shall be maintained unless plaintiff, or the person under whom he claims, was possessed of the premises within 10 years before the commencement of the action.

Appeal from circuit court, St. Louis county; Rudolph Hirzel, Judge.

Action by the Lindell Real-Estate Company against Jemima Lindell and others for partition. From the judgment rendered, defendants J. G. Antisdel and husband appeal. Affirmed.

Clopton & Trembley, for appellant. Boyle, Priest & Lehmann, for respondent.

BURGESS, J.

This is an action for the partition of certain lands in St. Louis county. From the judgment rendered, Mrs. J. G. Antisdel (whose husband is joined with her as a matter of form, she being the real party in interest) appealed. Mrs. Antisdel claims title to 2/36 of the land, which were adjudged by the trial court to belong to plaintiff. As to one of the interests in question, both plaintiff and defendant claim title under John Baker, deceased, who was the father of Mrs. Antisdel. Her claim to this interest is under a deed from her father dated July 19 1878, and recorded in the recorder's office of the city of St. Louis.

This deed was never recorded in St. Louis county, where the land lies. The claim of Mrs. Antisdel to the other 1/36 interest is as the sole and only heir of her deceased mother, Mrs. Thomasine H. E. Baker, from whom she claims to have derived the title as follows: First. By deed from John D. Davis to Garland Pollard, dated January 22, 1879, and recorded in the city of St. Louis. This deed was never recorded in the county of St. Louis. Second. An agreement between John Baker and John D. Davis, as follows: "Memorandum of agreement between John Baker, of the first part, and John D. Davis, of the second part, entered into for the purpose of settling and adjusting all differences growing out of a transfer by Robert Baker to the party of the first part of his interest in the estate of Jesse G. Lindell, deceased, and of certain suits pending in relation to, and growing out of, said transfer: (1) The party of the first part is to obtain a conveyance from Wilfred W. Wiggins and wife, by quit-claim deed, of all the right and title which he acquired in the estate of Jesse G. Lindell, deceased, by and from said John Baker, of record in the recorder's office for the city of St. Louis, in Book 574, page 79; the same to be conveyed to the party of the second part; the party of the first part to release all incumbrances on the same. (2) The party of the second part and wife to convey by quit-claim to the party of the first part, or to such person as he may designate, one undivided half of the said interest of Robert Baker in the estate of Jesse G. Lindell, excepting the interest in the property on Franklin avenue now occupied and leased by the firm of George P. Plant & Co., being tract No. 11, mentioned in said deed from Robert Baker to John Baker, and having a front of seventy-five feet on the north side of Franklin avenue, between Fifth and Sixth streets, in city block 138. (3) The suit of Chadwick v. John Baker, as Garnishee, pending in circuit court room No. 5, to be dismissed by plaintiff, defendant waiving allowance of garnishee fee. The suit of Robert Baker, Plaintiff in Error, vs. E. G. Chadwick, Defendant in Error, pending in court of appeals, to be affirmed or otherwise disposed of in such manner and at such time as may be thought advisable by said John D. Davis. The suit or John D. Davis vs. John Baker, Robert Baker, Sanguinette, W. W. Wiggins, to be dismissed by plaintiff on request of the party of the first part; said cause being in St. Louis circuit court. (4) The judgment in the case of E. G. Chadwick vs. Robert Baker, in the circuit court, is not to be used in any manner to disturb or interfere with the lands to be conveyed by the party of the second part as herein provided, or any interest or title therein. (5) The conveyance herein provided for to be executed as soon as practicable, and the suits above mentioned are to remain as they now stand until the conveyances are executed and delivered. December 27, '78. [Signed] John Baker. John D. Davis." Third. A "declaration of trust" made by Garland Pollard, bearing date November 1, 1879, which reads as follows: "Whereas, John D. Davis and wife, of the city of St. Louis and state of Missouri, by their deed of January 22, 1879, recorded in the recorder's office of the city of St. Louis, in Book No. 621, p. 157, conveyed to the undersigned, Garland Pollard, of the city of St. Louis, an undivided one-eighteenth part of an undivided one-half of the real estate devised by the late will and testament of Jesse G. Lindell, deceased; being one undivided one-half of the right, title, and interest acquired by Robert Baker in and to the estate of Jesse G. Lindell by his said will: Now, therefore, these presents witness that I hold the property conveyed by said deed for the uses and purposes following: That is to say, I am to hold the same until the death of Mrs. Jemima Lindell, who has a life estate therein (unless it should be deemed advisable to dispose of the same before that time). Upon her death I am to sell said property to the best advantage, and dispose of the proceeds of the sale as follows: First. Pay the costs and expenses of executing this trust. Second. Pay to the undersigned the sum of five hundred and seventy-five dollars ($575), with interest from date at the rate of 8 per cent. per annum. Third. Pay to Mrs. Thomasine H. E. Baker the sum of seven thousand four hundred and twenty-five ($7,425) dollars, with interest from date at the rate of 8 per cent. Fourth. Pay the undersigned the sum of twelve hundred and twenty-six ($1,226.60) dollars and sixty cents, with interest from date at the rate of 8 per cent. Fifth. Pay the balance to Mrs. Mary A. Baker. Witness my hand and seal this 1st day of November, 1879. [Signed] Garland Pollard." Neither said "agreement" nor the "declaration of trust" was ever recorded in the county of city of St. Louis.

Plaintiff claims to have acquired the title to said two 1/36 interests, and in support of that contention read in evidence: (1) A deed from John Baker, by the sheriff of St. Louis county, to John D. Davis, dated January 26, 1884, conveying all the right, title, interest, and estate of said Baker in the land in question, made pursuant to a sale under execution issued upon a judgment rendered in the circuit court of the city of St. Louis on January 7, 1879, in favor of the Fourth National Bank of said city, and against said John Baker. (2) A deed from John D. Davis and wife to John R. Lionberger, dated May 11, 1891, and recorded in the county of St. Louis. (3) Deed from John R. Lionberger to Lindell Real-Estate Company, dated May 12, 1891, and recorded in St. Louis county. (4) Deed from John Baker, by sheriff of the city of St. Louis, to John R. Lionberger, dated December 18, 1880, made pursuant to sale under execution issued upon the same judgment heretofore referred to, rendered by the circuit court of the city of St. Louis on January 7, 1879, against John Baker, and in favor of the Fourth National Bank of St. Louis. (5) Decree of the circuit court of the city of St. Louis rendered October 11, 1882, in the case of John R. Lionberger against John Baker and defendants, Mrs. Antisdel and her husband, whereby the deed hereinbefore mentioned from John Baker to his daughter Jessie G. L. Baker (now Mrs. Antisdel), dated July 19, 1878, and which deed constitutes the basis for Mrs. Antisdel's claim to one of the two thirty-sixths in controversy, was held by the court to be fraudulent and void as against the judgment of the Fourth National Bank of St. Louis against John Baker; said judgment in favor...