Maender v. Breck

• Decision Date: 03 March 1942
• Docket Number: No. 25906.,25906.
• Citation: 159 S.W.2d 310
• Parties: MAENDER et al. v. BRECK et al.
• Court: Missouri Court of Appeals

159 S.W.2d 310

MAENDER et al. v. BRECK et al.

No. 25906.

St. Louis Court of Appeals. Missouri.

March 3, 1942.

Rehearing Denied March 17, 1942.

Appeal from Circuit Court, St. Louis County; John J. Wolfe, Judge.

"Not to be reported in State Reports."

Suit by Ruth Maender and another against E. C. Breck and another to enjoin a sale of realty under an execution on a judgment for defendant Breck against plaintiffs' father. From a judgment dissolving a temporary restraining order and dismissing the bill, plaintiffs appeal.

Reversed and remanded.

Louis L. Hicks, of Clayton, for appellants.

S. C. Rogers, of St. Louis, for respondent.

BENNICK, Commissioner.

This is a suit by plaintiffs, the alleged owners of certain real estate in St. Louis County, to enjoin the sale of such real estate by defendant Sheriff of St. Louis County under an execution issued upon a judgment for $1,628.74 previously obtained by defendant E. C. Breck against plaintiffs' father, one William A. Koeneman.

The real estate consists of an improved lot known as 7314 Maryland Avenue, and an unimproved lot in Davis Place.

Issue was joined upon plaintiffs' theory of the case, which was that Koeneman, the judgment debtor, had no interest in the real estate subject to execution, and that a sale of the same under an execution against him would put a cloud on plaintiffs' title. Sec. 1683, R.S.Mo.1939, Mo. St.Ann., sec. 1519, p. 1672.

Upon a trial of the case, a judgment and decree was entered in favor of defendants, dissolving the temporary restraining order previously issued, and dismissing plaintiffs' bill. Following the entry of such judgment, plaintiffs have perfected their appeal to this court, where the appellate jurisdiction lies as against any contention that the case involves title to real estate. Weil v. Richardson, 320 Mo. 310, 7 S.W.2d 348; Flinn v. Richardson, Mo.Sup., 7 S.W.2d 356.

The judgment against Koeneman was rendered on September 25, 1935, and the execution involved herein was issued on October 2, 1940, with the sale of the property set for November 25, 1940. This suit to enjoin the sale was instituted on November 15, 1940.

As for the title to the real estate, the evidence disclosed that the Maryland Avenue property was acquired by Martha B. Koeneman, the wife of the judgment debtor, by general warranty deed executed October 1, 1924, and that such parcel of real estate thereafter remained the sole and separate property of Martha B. Koeneman until she subsequently conveyed it to plaintiffs, her daughters, by a general warranty deed in the execution of which her husband joined.

The Davis Place property was, on June 28, 1928, conveyed to William A. Koeneman and Martha B. Koeneman, his wife, who thereafter held the same by an estate by the entirety until their subsequent conveyance of the property to plaintiffs.

Early in 1935, Mr. and Mrs. Koeneman both became ill and unable to live alone in the Maryland Avenue property, whereupon an arrangement was made whereby their daughter, Ruth Maender, moved into the home with them, and, in conjunction with her sister, Grace Steiner, assumed their care as well as the care and upkeep of the property. In return, according to plaintiffs' evidence, the parents determined to give or convey to plaintiffs all the real estate in question in this proceeding; and on March 4, 1935, separate general warranty deeds were executed by William A. Koeneman and Martha B. Koeneman, his wife, conveying the Maryland Avenue property and the Davis Place property to plaintiffs, Ruth Maender and Grace Steiner. Neither of such deeds was recorded for the reason, so Ruth Maender testified, that she was unaware that they were supposed to be recorded; and, as a matter of fact, both deeds were misplaced and not discovered until shortly before the trial.

On January 9, 1940, at Martha B. Koeneman's insistence, a new deed was executed in the place of the two deeds that had been misplaced, this being a general warranty deed, executed by William A. Koeneman and Martha B. Koeneman, his wife, and conveying to plaintiffs, Ruth Maender and Grace Steiner, both the Maryland Avenue property and the Davis Place property. This deed was recorded on October 17, 1940, which date, while subsequent to the time of the issuance of the execution and the levy thereunder, was prior to the date of the purported sale which was scheduled for November 25, 1940.

Martha B. Koeneman had meanwhile died on September 21, 1940; and it is the contention of defendant Breck, the judgment creditor, that at her death William A. Koeneman, the judgment...