Lindell Real Estate Company v. Lindell

• Citation: 43 S.W. 368,142 Mo. 61
• Parties: Lindell Real Estate Company v. Lindell et al.; Ellen Davis, Appellant
• Decision Date: 07 December 1897
• Court: Missouri Supreme Court

43 S.W. 368

142 Mo. 61

Lindell Real Estate Company v. Lindell et al.; Ellen Davis, Appellant

Supreme Court of Missouri, First Division

December 7, 1897

Appeal from St. Louis City Circuit Court. -- Hon. Leroy B. Valliant Judge.

Reversed and remanded.

Thomas J. Rowe and Joseph S. Laurie for appellant.

(1) Appellant's petition for review is in accordance with the provisions of the statute. R. S. 1889, secs. 2022, 2209 2217, 2219, 2220; Freeman on Judg., sec. 105; Black on Judg sec. 312; Irving v. Leyh, 102 Mo. 200; Jones v. Driskill, 94 Mo. 190; Bagley v. Sligo Furnace Co., 120 Mo. 248; Schmidt v. Neumyer, 100 Mo. 207; State ex rel. v. Scott, 104 Mo. 26, 30; Tennyson v. Tennyson, 49 Mo. 110; Campbell v. Garton, 29 Mo. 343; Randolph v. Stone, 58 Mo. 155. (2) The claim of the petitioner, Mrs. Ellen Davis, is not barred by the statute of limitations, because she was, as her petition alleges, a married woman at the time her cause of action accrued, and has been such ever since. R. S. 1889, sec. 6767; Throckmorton v. Pence, 121 Mo. 50; Arnold v. Willis, 128 Mo. 145; Brown v. Dressler 125 Mo. 589; Latlie-Morrison v. Holladay, 39 P. 1100; Hurlbut v. Wade, 40 Ohio St. 603; Alsup v. Jordan, 69 Tex. 300; Lippard v. Troutman, 72 N.C. 551. (3) An act allowing a feme covert to sue or be sued alone concerning her separate property, does not remove the disability of coverture so as to allow the statute of limitations to bar her action. Campbell v. Crater, 95 N.C. 156; North v. James, 61 Miss. 761; 2 Wood on Lim., sec. 240. (4) Laches can not be imputed to a person not sui juris, and hence not to a married woman; coverture is a sufficient excuse for not asserting her rights by suit. Kroenung v. Goehri, 112 Mo. 641; Ferguson v. Soden, 111 Mo. 208; Napton v. Leaton, 71 Mo. 358; Bollinger v. Chouteau, 20 Mo. 89; Chew v. Hyman, 7 F. 16; Baker v. Morris, 10 Leigh, 284; Sims v. Everhardt, 102 U.S. 300; Bryan v. Kales, 134 U.S. 126; Cole v. Grigsby, 35 S.W. 684; Tate v. Greenlee, 2 Hawks (N. C.), 486; Falls v. Torrence, 2 Hawks (N. C.), 490. (5) But independently of the excuse of coverture, mere lapse of time, for any period short of the statute of limitations, does not constitute laches. The delay must also have operated to the prejudice of the adverse party. Dunklin County v. Chouteau, 120 Mo. 577; Murphy v. DeFrance, 105 Mo. 53; Kline v. Vogel, 90 Mo. 238; Kelly v. Hurt, 61 Mo. 463; Spurlock v. Sproule, 72 Mo. 503; Parker v. Hotel Co., 34 S.W. 209.

John D. Davis and Joseph W. Lewis, Jr., for respondent.

(1) The petition does not state facts sufficient to justify the court in granting the relief asked. A trustee may purchase the trust property for himself at a public sale, conducted by another trustee, over which sale he has no control, which he does not bring about and can not prevent. Prevost v. Gratz, 1 Pet. C. C. 364; Fisk v. Sarber, 6 W. & S. 18; Chorpenning's Appeal, 32 Pa. St. 315; Lusk's Appeal, 108 Pa. St. 152; Clark v. Holland, 72 Iowa 34; Allen v. Gillette, 127 U.S. 589; Earl v. Halsey, 1 McCart, 332; Jackson v. Woolsey, 11 Johns. 446. (2) A trustee may purchase the trust property for himself from a third party who has properly acquired the title. Wortman v. Skinner, 12 N.J.Eq. 358; Munn v. Burges, 70 Ill. 604; Bush v. Sherman, 80 Ill. 160. (3) The petitioner, Mrs. Ellen Davis, is barred by the statute of limitations. She is not exempt from its operations by reason of her coverture. R. S. 1889, sec. 1996, 6864; 13 Am. and Eng. Ency. of Law, 739; Castner v. Walrod, 83 Ill. 171; Kibbe v. Ditto, 93 U.S. 624; Brown v. Cousens, 51 Me. 301; Ball v. Bullard, 52 Barb. 141; Garland Co. v. Gaines, 47 Ark. 558; Hayward v. Gunn, 82 Ill. 385; Enos v. Buckley, 94 Ill. 458; Geisen v. Heiderick, 104 Ill. 537; Cameron v. Smith, 50 Cal. 303; Sparks v. Roberts, 65 Ga. 571. (4) The statute of limitations applies in Missouri alike to actions at law and in equity. Hunter v. Hunter, 50 Mo. 445; Rogers v. Brown, 61 Mo. 187; Hughes v. Littrell, 75 Mo. 573; Dunn v. Miller, 96 Mo. 324; Ins. Co. v. Smith, 117 Mo. 261. (5) In the case of an express trust the statute begins to run against one, who, as a cestui que trust, claims the equitable interest from the time that the trustee openly repudiates his trust relation and sets up an adverse claim. Smith v. Ricords, 52 Mo. 581; Buren v. Buren, 79 Mo. 538; Hughes v. Littrell, 75 Mo. 573. (6) The appellant is guilty of laches, and is not entitled to equitable relief. A married woman in relation to her separate equitable estate is a feme sole, possessing all the powers and privileges incident to the ownership of property, and subject to the same restrictions. Walter v. Walter, 48 Mo. 140; Rieper v. Rieper, 79 Mo. 352; Perry on Trusts [4 Ed.], sec. 654; 2 Story's Equity Jur. [13 Ed.], sec. 1368; Whitesides v. Cannon, 23 Mo. 457; Turner v. Shaw, 96 Mo. 22; Sprague v. Rooney, 104 Mo. 349; Meyers v. Van Wagoner, 56 Mo. 115. (7) Courts of equity never assist those seeking equitable relief on the ground of fraud, who, having acquired knowledge of the fraud upon which the action is based, indulge in unnecessary delay before invoking the aid of the court. McKnight v. Taylor, 1 How. 161; 2 Pomeroy's Eq. Jur. [2 Ed.], sec. 917; Landrum v. Bank, 63 Mo. 48; Bliss v. Prichard, 67 Mo. 181; Reel v. Ewing, 71 Mo. 17; Kline v. Vogel, 90 Mo. 229; Kroenung v. Goehri, 112 Mo. 641; Twin Lick Oil Co. v. Marburg, 91 U.S. 587. (8) In the absence of an explanation the appellant is charged with notice of the fraud from the time the alleged fraudulent proceedings took place. Hecht v. Slaney, 72 Cal. 363.

OPINION

Robinson, J.

On August 30, 1892, a suit between the devisees of Jesse G. Lindell, deceased, and their heirs and assigns for the partition of certain real estate in St. Louis, subject, however, to the life estate of Jemima Lindell, the widow of said Jesse G. Lindell, was instituted.

On February 23, 1893, an interlocutory judgment of partition, defining the respective interests of the parties and ordering a sale of the property, was rendered. Afterward the property was sold by a special commissioner, whose report of sale was duly approved, which was followed on May 27, 1893, by final decree. April 1, 1895, the appellant in this proceeding, Ellen Davis, a married woman, and one of the defendants in said cause, appeared in court and filed her petition for review, verified by affidavit, under the provisions of section 2217 and 2220 of the Revised Statutes of 1889. Mrs. Davis is now and was then a nonresident and was not summoned and did not appear to said action, but was brought in by publication. Plaintiff then moved to strike the petition for review from the files for the following grounds:

"First. The petition does not set forth facts constituting a good defense to the allegations contained in plaintiff's petition.

"Second. It appears from the facts stated in said petition for review that more than ten years have elapsed since the alleged cause of action accrued, and the action is therefore barred by the statute of limitations.

"Third. It also appears from the facts stated in said petition for review that the petitioner has been guilty of such laches, that she is not entitled to assert any claim to the property described in plaintiff's petition."

Which so-called motion is in effect a demurrer to the petition and has been so treated by all the parties.

The petition for review is in words and figures following, omitting the caption:

"Now comes your petitioner, Ellen Davis, and states to the court that she was made a party defendant in the above entitled cause which was an action instituted in this court on July 30, 1892, by and between the devisees of the late Jesse G Lindell and their heirs and assigns, for the partition of the real estate therein described, subject to the life estate therein of the said Jemima Lindell; that your petitioner, said defendant, was, at the institution of said suit, and now is, a nonresident of t State of Missouri, and was not summoned in said action, neither did she appear to said suit, nor was she made a party as a representative of anyone who had been summoned or appeared, but was brought in by publication in accordance with the provisions of the statute relating to nonresident defendants; that as to her, a default was granted in said cause and the allegations of the petition taken as confessed, and on the twenty-third day of February, 1893, an interlocutory judgment of partition and an order for the sale of the property was entered; that said judgment undertook to define the respective interests in and to said real estate of the parties therein designated, and directed that inasmuch as partition in kind seemed impracticable, a sale of said property be made by a special commissioner then and there appointed by the court, and that the proceeds of such sale be distributed by said commissioner to the parties mentioned and described, according to their respective interests as defined by said judgment; that (on March 23, 1893), said special commissioner made his report of the sale of said property, which was duly approved by the court, and (on May 27, 1893) said special commissioner made his final report showing that the whole amount of the purchase money had been paid to him and that he had distributed the same (amounting to $ 67,089 net) to the parties designated by the court according to their respective interests; that said report was duly approved (on March 27, 1893), and a final judgment in the cause was then and there entered accordingly.

"The petitioner in said cause alleged that your petitioner defendant therein, claimed to be entitled to the interest in said property which Jesse G. Lindell, Jr., the nephew, or grandnephew of Jesse G. Lindell, deceased, acquired under the will of...