Martin v. Lewis
| Decision Date | 12 November 1951 |
| Docket Number | No. 42162,No. 1,42162,1 |
| Citation | 244 S.W.2d 87 |
| Parties | MARTIN v. LEWIS et al |
| Court | Missouri Supreme Court |
James D. Dockery, St. Louis, for appellant.
Flynn & Parker, Francis C. Flynn and Norman C. Parker, all of St. Louis, for respondents.
This is an action to determine and quiet title to real estate situate in the City of St. Louis. The trial court found the issues in favor of defendants and that defendant Effie F. T. Lewis was the fee simple owner. Plaintiff's petition was dismissed with prejudice, and he appeals.
The real estate in controversy and particularly described in the petition is a lot having a street frontage of 25 feet and a depth of 120 feet. At all times herein mentioned it had a two-story brick residence thereon.
The petition alleged plaintiff to be the owner of the property as the sole heir of Charles Holliday; that defendant Effie F. T. Lewis wrongfully claimed title thereto under a trustee's deed executed pursuant to a pretended sale and foreclosure of a deed of trust executed by Charles Holliday and his wife, Jennie, securing the payment of certain promissory notes; that said notes had matured more than ten years prior to the foreclosure proceedings and were barred by limitation under the provisions of Sec. 516.110, RSMo1949; that, consequently, foreclosure of the deed of trust securing the payment thereof was barred under the provisions of Sec. 516.150, RSMo1949; that Charles Holliday and his wife, Jennie, occupied the premises as their home until the death of Charles, and thereafter Jennie occupied the property as her home until her death on October 27, 1945; and that defendant Thomas Lewis was the husband of defendant Effie F. T. Lewis and was joined in the suit solely for that reason.
Defendants' answer admitted that defendant Effie F. T. Lewis claimed title under said trustee's deed executed pursuant to foreclosure of the deed of trust described in the petition and that Thomas Lewis was her husband; and denied the other allegations therein. The answer affirmatively pleaded that any claim of title plaintiff had to said real estate was barred by limitation under Sec. 516.010, RSMo, which provides that no action for recovery of lands shall be commenced, had or maintained unless it appear that plaintiff, his ancestor or predecessor in title, was seized or possessed of the land in question within ten years prior to the commencement of the action.
Plaintiff's reply denied all matters affirmatively pleaded in defendants' answer.
The case was tried to the court and we shall review the case upon the law and the evidence as in suits of an equitable nature, giving due regard to the opportunity of the trial court to judge of the credibility of the witnesses. Section 510.310, par. 4, RSMo1949; Cosentino v. Heffelfinger, 360 Mo. 535, 541, 229 S.W.2d 546, 549.
Charles Holliday, who died intestate, is the common source of title. There was no administration of his estate. Plaintiff is the sole heir of Charles Holliday. He is the son of a deceased daughter of Charles Holliday by his first wife. Sometime after the death of the first wife, Charles Holliday married a woman whose first name was Jennie. They had no children. Plaintiff was born in 1898. He never was a resident of St. Louis and prior to 1947 knew nothing of this property or of any right he may have had to it.
Charles Holliday, the common source of title, acquired the real estate in 1914. It is stipulated that Charles and his second wife, Jennie, 'lived in' the residence thereon at the time of his death on June 2, 1916, and that thereafter Mrs. Holliday 'lived in' it until her death on October 21, 1945.
On April 12, 1915, Charles Holliday and Jennie Holliday executed a deed of trust to Albert T. Terry, as trustee, to secure the payment of seven promissory notes of that date, payable to the order of Manly W. Mann. The evidence does not reveal whether these notes were signed by Jennie Holliday. They were not produced at the trial. It was agreed that both parties had made diligent search for them. There is no evidence in the record as to whether any payments were ever made on the notes. According to recitals in the deed of trust, two of said notes were for $50 each, respectively due and payable in six and twelve months after date; four were for semi-annual interest, respectively due and payable six, twelve, eighteen and twenty-four months after date; and the seventh was for $800, due and payable April 12, 1917. Thus all of said notes, on their face, had matured on April 12, 1917.
On November 2, 1928, more than eleven years after the maturity of all of said notes, foreclosure proceedings were begun under the deed of trust by the trustee therein named publishing the first notice of sale. On November 27, 1928, the sale was held, at which defendant Effie F. T. Lewis bought the property for $648, which amount she, through an agent there appearing for her, paid over to the trustee, in return for which the trustee's deed was executed and delivered to her. There is no question as to the regularity and sufficiency of the foreclosure proceedings or the trustee's deed.
Defendants' evidence was as follows:
George L. Ganss, a realtor, testified: He knew and had handled business for Effie F. T. Lewis prior to the foreclosure proceedings in 1928. Very shortly before the foreclosure, she brought Jennie Holliday to Ganss' office for the purpose of refinancing the property and saving it for Mrs. Holliday. Ganss examined the property, found it in poor condition, and refused to make a loan on it. Thereafter, at the instance of Mrs. Lewis, he attended the foreclosure sale and purchased it in behalf of Mrs. Lewis. She was not the owner of the notes.
It was stipulated and agreed between the parties hereto that from January 1, 1935, until the institution of this suit Ganss had attended to collection of rentals, payment of taxes and the making of repairs for and in behalf of Mrs. Lewis. By agreement, an itemized list of his receipts and disbursements was introduced in evidence as a correct statement of his accounts and activities as her agent. This statement showed that Ganss had attended to renting the property, collecting the rents, paying the taxes and insurance and making and paying for repairs; and that he had attended to the institution of several suits brought by him in behalf of Mrs. Lewis against tenants for the enforcement of rental contracts.
Defendant Effie F. T. Lewis testified that ever since she acquired the deed to the property she had claimed it as her own and did not buy it for the benefit of anyone else; that she had been in continuous possession of it since 1928; that she permitted Mrs. Holliday to live in the upstairs portion of the house, rent-free, as a kindness to her, as she had nothing and had nobody to help her.
On the 15th day of April, 1932, Effie F. T. Lewis, joined by her husband, Thomas Lewis, executed a deed of trust on this real estate to John C. Greulich, as trustee, to secure to Henry W. Tramre the payment of a promissory note for a principal indebtedness of $800, for money borrowed by Mrs. Lewis, due three years after date, together with certain interest notes. Attached to the deed of trust is an affidavit made by Effie F. T. Lewis, under date of April 15, 1932, on a form bearing a heading of 'Land 'Title Insurance Company', in which affidavit she stat...
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