McKenzie v. Donnell

• Decision Date: 10 December 1907
• Citation: 208 Mo. 46,106 S.W. 40
• Parties: McKENZIE et al. v. DONNELL et al.
• Court: Missouri Supreme Court

106 S.W. 40

208 Mo. 46

McKENZIE et al. v. DONNELL et al.

Supreme Court of Missouri, Division No. 2.

December 10, 1907.

1. TRIAL—TRIAL BY COURT—FINDING OF FACTS—NECESSITY.

A special finding of facts is not necessary where not requested, and a judgment in such a case is not erroneous because of no finding of

facts, especially where the pleadings show clearly what the court found as a basis of its decree.

2. SAME—JUDGMENT—CONCLUSIVENESS — BAR OF SUBSEQUENT ACTION.

Plaintiffs obtained a decree quieting title to land, and the court stated and settled an account for rents and profits up to the date of the decree, but defendants appealed, gave bond, and remained in possession. Subsequently plaintiffs brought ejectment against a tenant, in which suit defendants were parties, and recovered possession, and afterwards brought a bill to enforce the decree as to an accounting and also for an accounting for the rents, etc., accruing subsequent to the decree, and while it was superseded by defendants' appeal bond. Held, that the judgment in ejectment was not a bar to the later suit, especially where the petition in ejectment specifically alleged that plaintiffs did not sue for the rents, because they had already been adjudged them as against defendants, etc.

3. SAME—SPLITTING CAUSE OF ACTION.

Plaintiffs did not split up their cause of action by bringing more than one suit.

4. QUIETING TITLE — DECREE — FAILURE TO OBEY PROVISIONS — EFFECT ON ADVERSE PARTY.

Where title to land was revested absolutely in plaintiffs by a decree quieting their title, defendants' rights are not affected by the fact that plaintiffs have not paid to a third person a sum which the decree made a lien on the land.

Appeal from Circuit Court, Jackson County; Shannon C. Douglas, Judge.

Action by Ella McKenzie and others against Catherine E. Donnell and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

See 52 S. W. 222.

Edward P. Garnett, for appellants. Wash Adams and N. F. Heitman, for respondents.

GANTT, J.

This is an appeal from a judgment of the circuit court of Jackson county for an accounting, and to enforce the decree of this court rendered on the 12th of July, 1899, wherein the plaintiffs herein were plaintiffs in error, and the defendants herein were appellants in a cross-appeal. The petition sets forth at length the bringing of the bill in equity by the plaintiffs as the children and heirs at law of Jedediah E. McKenzie to recover certain lands, and set aside a deed of trust thereon, and for an accounting on the ground that a certain deed of conveyance, to wit, a deed of trust made by the said Jedediah McKenzie on April 1, 1875, to Charles H. Vincent, trustee for Patterson Stewart for $3,000, was invalid, because of the insanity of the said Jedediah McKenzie at the date of its execution, and that a certain trustees' deed made by the sheriff of Jackson county under and by virtue of the power of sale contained in said deed of trust to Catherine E. Donnell was invalid for the same reason, and that such proceedings were had that a decree was rendered by the circuit court of Jackson county in favor of plaintiffs on the 15th of July, 1895, whereby it was adjudged that at the date of the execution of said deed of trust said Jedediah was insane, and ordered and decreed that the said deed of trust of March 15, 1875, be set aside, and for naught held, and that the trustees' deed by the sheriff as aforesaid to Catherine E. Donnell should also be set aside and for naught held on account of the invalidity of the deed of trust under which said trustees' deed was made, and that a certain other deed of trust given by the said Catherine E. Donnell and M. S. C. Donnell, her husband, to Oliver H. Dean as trustee for Israel B. Mason, of date July 29, 1886, and duly recorded in Jackson county to secure a note of even date therewith for $15,000, which had been transferred and delivered to the Citizens' National Bank of Kansas City, should also be set aside, and that a certain other deed of trust by the said Catherine E. Donnell and her husband to James S. Botsford, trustee for George F. Ballingal, of date October 27, 1892, and for $500, and duly recorded in Jackson county, and which had been transferred to the Citizens' National Bank of Kansas City, should also be set aside and for naught held. And it was further adjudged and decreed in the said action that the fee-simple title to the above-described real estate should be, and the same was thereby, vested in the children and grandchildren of the said Jedediah McKenzie, the plaintiffs in this suit. It was further ordered and decreed that the defendants Catherine E. Donnell and M. S. C. Donnell, her husband, and the said Citizens' National Bank, and the trustees in the said deed of trust and all persons claiming by, through or under them, should be forever debarred and enjoined from having or claiming any right or title whatsoever to the said real estate adverse to the plaintiffs therein the children and grandchildren of the said Jedediah McKenzie, and the title to said property was forever quieted in the said heirs. It is also alleged that the said circuit court charge the said Donnells with the rents and use and occupation of said real estate and for certain rock quarried out of said premises by the said Donnells during their occupation of the same, which the court found to be in the aggregate, up to the time of entering the said judgment, $3,223, and, on the other hand, the court charged the said real estate with the purchase price paid by the said Donnell therefor, to wit, $2,105, and also with the taxes thereon since the year 1877 up to the time of said decree, with interest thereon, and with certain attorney fees paid by the said Donnell in resisting the condemnation of a part of said land for Twenty-Third street, and in resisting a certain other tax bill against said property for the grading of Locust street, in all amounting to $1,250, and for certain repairs thereon, the whole amounting in the aggregate to $11,113.14, and deducted from the said sum the said sum of $3,223 rents and interest thereon and rock quarried up to the time of the entering of the said decree, and found a balance of $7,890.14, and decreed the same as a charge against the plaintiffs on said real estate, and ordered and adjudged that the same be paid to the Citizens' National Bank within 12 months of the rendition of the judgment and to bear 6 per cent. interest. It was ordered, adjudged, and decreed that the defendants immediately deliver possession of the said real estate unto the plaintiffs. In default of payment of the said $7,890.14 within the 12 months allowed by the court, it was decreed that the said real estate should be sold to satisfy the same, and out of the proceeds of said sale the sheriff should first pay the costs and expenses of said sale, and no other costs, and next pay to the Citizens' National Bank the said sum of $7,890.14, with interest thereon at the rate of 6 per cent. per annum from the date of judgment until paid, provided, however, that, if the cost adjudged in said cause against said Catherine and M. S. C. Donnell had not been paid on execution or voluntarily at the time of the sale of the said land under said execution, then the amount of the said cost adjudged in said cause should be deducted from the said sum of $7,890.14, and the balance of said sum paid to the Citizens' National Bank; and, thirdly, the balance if any, of the proceeds of said sale, should be paid to the plaintiffs in this case. Plaintiffs were also charged with certain other items of costs, which are not necessary to be noted at this time. The plaintiffs filed a motion to modify the said decree, which motion the court overruled, and the plaintiffs excepted. The defendants also filed a motion for new trial in arrest of judgment and a motion to tax the costs against the plaintiffs, all of which motions the court overruled, and the defendants excepted. The plaintiffs brought their exceptions to this court by writ of error, and the defendants appealed.

The circuit court made a further order in the cause, whereby it permitted the said Donnell to pay any and all taxes, general and special, which might be levied or charged on the property in controversy pending their appeal, except a certain special tax bill, which was then pending in the Supreme Court, and ordered that they be allowed all such payments as liens upon such property, with interest thereon from the time of payments until the decree should be carried into effect if affirmed by the Supreme Court, and further decreed that the said Donnells should be charged with the actual rents of the said premises received by them during said appeal, with interest thereon at the rate of 6 per cent., and for all moneys received by them for rock, if any, quarried by them on the said property during said appeal and until said judgment was affirmed and carried into effect. It is thereupon further alleged that on the 12th day of July, 1899, the Supreme Court of Missouri rendered an opinion in the said cause, which is reported in the 151 Mo. 461-472, 52 S. W. 222, and affirmed the said decree in all respects, except that it disallowed the sum of $375 attorney's fees allowed the said Catherine E. and M. S. C. Donnell in defending the tax bills then in suit in the Supreme Court; thus leaving the amount with which said lands were to be charged in favor of the Citizens' National Bank to be $7,515.14. It further appears that the Supreme Court modified the judgment of the circuit court so as to extend the time to plaintiffs to pay said charge on said land, for 90 days after August 1, 1899. It is then alleged that afterwards the city of Kansas City, Mo., by the exercise of its power of eminent domain, took and appropriated for public use, to wit, for the boulevard and parkway known as "North Gillham Road," about two-thirds of the said tract of land, leaving a tract uncondemned...