Mexico Refractories Co. v. Roberts
| Citation | 167 S.W.2d 660 |
| Decision Date | 07 December 1942 |
| Docket Number | No. 20210.,20210. |
| Parties | MEXICO REFRACTORIES COMPANY, A CORPORATION, APPELLANT, v. STANTON C. ROBERTS, RESPONDENT. |
| Court | Missouri Court of Appeals |
Appeal from Osage Circuit Court. — Hon. R.A. Breuer, Judge.
AFFIRMED.
Fry & Edwards for appellant.
(1) Injunction is proper remedy where fire clay is being taken from land, regardless of insolvency of trespasser, because of the irreparable damage to the land. Echelkamp v. Schrader, 45 Mo. 505; Lytle v. James, 98 Mo. App. 337; Teachout v. Clough, 143 Mo. App. 474; Barron v. Cooperage Co., 185 Mo. App. 625; Eaton v. Milbourn, 135 S.W. (2d) 387; Lockwood v. Lunsford, 56 Mo. 68; Sikes v. Turner, 247 S.W. 803; Davis v. Solomon, 243 S.W. 410; Nokol Co. of Missouri v. Becker, 300 S.W. 1108. (2) Where a deed makes reference to another, the instrument to which reference is thus made becomes thereby part and parcel of the first instrument. Agan v. Shannon, 103 Mo. 661; Thomson v. Thomson, 115 Mo. 56; Mitchner v. Holmes, 117 Mo. 185; Loring v. Groomer, 110 Mo. 632; Fancher v. Prock, 88 S.W. (2d) 179. (3) The law imputes to a purchaser or lessee of land all information which could be conveyed to him by an actual view of the premises, and a knowledge of all facts relating to the land appearing upon the muniments of title. 66 C.J., sec. 952, page 1122; Loring v. Groomer, 110 Mo. 632; Mathews v. O'Donnell, 233 S.W. 451; Adams v. Gossom, 228 Mo. 566; Gross v. Watts, 206 Mo. 373; 45 C.J., sec. 47, page 551; National Refractories Co. v. Howard, 44 S.W. (2d) 65.
Orlando A. Mundwiller and John P. Peters for respondent.
(1) (a) Injunction will not lie as an original and independent proceeding to determine title to lands and mines laid thereunder, where the same are held by defendant (respondent) under claim of right and color of title. Smith v. Jameson, 93 Mo. 13; Eaton v. Milbourn, 135 S.W. (2d) 387; Walker v. Norris, 145 S.W. (2d) 972; Echelkamp v. Schrader, 45 Mo. 505; Integrity Mining & Milling Co. v. Moore et al., 130 Mo. App. 627; High on Injunctions (4 Ed.), sec. 732, page 695. (b) In a case like the present an action in ejectment would be an appropriate remedy to test the right and try the title to the disputed land in question. Smith v. Jameson, 93 Mo. 13; Graham v. Womack, 82 Mo. App. 618. (c) The jurisdiction in restraint of trespass to mines is not an original jurisdiction of equity, under which the court would be justified in trying the title to the mines themselves, and the party aggrieved must therefor first establish his title at law, or show satisfactory reason for not doing so. 1 High on Injunctions (4 Ed.), sec. 732, page 695. (d) The remedy at law is not regarded as inadequate, where the injustice is likely to occur because of the party's own negligence, and in such case an injunction will not be granted. 32 C.J., p. 64, sec. 45. (e) Injunction lies in the sound discretion of the court. Putnam v. Coates, 283 S.W. 717, 719; Robins v. Latham, 134 Mo. 466. (f) The writ of injunction ought not to issue ... where plaintiff by his own acts puts himself in a position that he ought not to ask it. Putnam v. Coates, supra; Shrainka v. Oertel, 14 Mo. App. 474. (2) (a) The proceedings in the probate court, resulting in the guardian's sale and deed to appellant, are void, for the reason that the deed was not executed in accordance with the court's direction and was not in conformity with the statutory requirements. (b) Section 479, R.S. Mo. 1939, provides: "Sales of real estate of insane persons shall be conducted in the same manner, and the same proceedings shall be had in reference thereto as in cases of sales of lands of minors." R.S. Mo. 1939, sec. 479. (c) Section 405, R.S. Mo. 1939, provides that sales of real estate of minors shall be conducted in the same manner and the same proceedings had with reference thereto as in cases of sale of real estate of deceased persons for payment of debts (except no publication is required). (d) Section 142, R.S. Mo. 1939, provides how sales of real estate of decedents shall be conducted. "The petition shall be accompanied by a true account of his administration, a list of the debts due to and by the deceased and remaining unpaid, and an inventory of the real estate and of the remaining personal estate, with its appraised value, and all the other assets in his hands, and the whole to be verified by the affidavit of the executor or administrator." (e) Jurisdictional defects to a guardian's sale, can be attacked at any time and in a collateral proceeding. Hutchison v. Shelley, 133 Mo. 400; Cunningham v. Anderson, 107 Mo. 371; State ex rel. v. Holtcamp, 245 Mo. 655; Baldwin v. Whitcomb, 71 Mo. 651. (f) The procedure in the probate court was and is so vague and indefinite as to render it of no legal value and void ab initio. If appellant herein sought to have a contract specifically performed pursuant to sections 168 and 169, R.S. Mo. 1939, at the time the petition was filed in the probate court, then the probate court never acquired jurisdiction for the petition was never sworn to. Sec. 169, R.S. Mo. 1939; Baldwin v. Whitcomb, 71 Mo. 651. Otherwise, appellant failed to comply with section 479, R.S. Mo. 1939, in that no certificate of appraisement was filed with the report of sale. Sec. 479, R.S. Mo. 1939. The petition praying for the order of sale was not sworn to. Secs. 142, 405, R.S. Mo. 1939. The petition and order of sale are based on a certain lease dated ____ day of ____, 1933, which no longer was in existence; it having become merged in a subsequent lease and the proceedings therefore are coram non judice. The report of sale in the probate procedure of 1938 failed to comply with the law in that it was a private sale, and failed to state that the real estate sold for not less than three-fourth of its appraised value. Secs. 406 and 407, R.S. Mo. 1939; Carder v. Culbertson, 100 Mo. 269. (3) (a) Respondent submits that in this case there is an entire failure of proof, since in the probate procedure of 1938 appellant declared on a lease of ____ day of ____, 1933 (later shown to be as of October 11, 1933, Abs., pp. 95-96), and to sustain title in circuit court in this suit by injunction appellant declared upon a lease dated August 7, 1934. Sec. 1167, R.S. Mo. 1939; Ingwerson v. Railroad, 205 Mo. 328; Park v. Park, 259 S.W. 417. (b) Furthermore, appellant (plaintiff) failed to prove the allegations in its petition that "defendant (respondent) is wholly insolvent and that it has no adequate remedy at law by an action for damages," and that irreparable injunction will result. 1 High on Injunctions (4 Ed.), sec. 651, page 626; Powell v. Canaday, 95 Mo. App. 713; Hatton v. Railway Co., 253 Mo. 660; Walker v. Norris, 145 S.W. (2d) 973. (c) Defendant (respondent) may take advantage of entire failure of proof. Park v. Park, 259 S.W. 417. (d) A court of equity will not grant an injunction except on the clearest proof. Powell v. Canaday, 95 Mo. App. 713; Yancy v. Jones, 153 Mo. App. 206. (e) Because of said failure of proof respondent's demurrer at the close of appellant's (plaintiff's) evidence should have been sustained.
This is an appeal from a judgment of the Circuit Court of Osage County, which judgment made permanent in part a temporary injunction previously issued.
The appellant (plaintiff) sought to enjoin the respondent (defendant) from removing fire clay already mined and also from mining fire clay from a certain clay pit. The trial court dissolved the injunction as to that part of the clay pit not covered by the metes and bounds description of appellant's deed, but made permanent the injunction as to the land described in the deed and as to clay already mined and in a certain stock pile.
The appeal was granted to the Supreme Court on the theory that title to real estate was involved and the value of the fire clay was in excess of $7500; but the Supreme Court held that the title to real estate was only incidentally or collaterally involved, and that the value of the fire clay was less than $7500, and therefore, it had no jurisdiction, and transferred the cause to this court, under authority of State ex rel. Brown v. Hughes et al., 137 S.W. (2d) 544, and cases cited therein.
Since the Supreme Court has held that title to real estate is not directly involved, it will not be necessary for us to consider and discuss some of the points raised in the original briefs at the time the cause was pending in the Supreme Court. By its petition, the appellant sought to enjoin and restrain respondent from mining and removing fire clay on or under the surface of the following described lands in Osage County, to-wit: "A certain fire clay mine situated in the Northeast corner of the Northeast Quarter of the Northeast Quarter of Section twenty-one (21), Township Forty-three (43), Range eight (8)," and to further enjoin respondent from removing fire clays from a certain stock pile located on said above described property. The Judge of the Circuit Court of Osage County, in vacation, made an order allowing temporary injunction as prayed for. Respondent filed answer denying each and every allegation of appellant's petition, and further alleged that appellant had secured a deed to a certain tract of ground described by exact metes and bounds, and lying and situate near the northeast corner of the above described real estate; and that thereafter, respondent had leased the whole tract of ground except that part which was included in the metes and bounds description contained in the deed to the appellant. The record does not disclose the filing of a reply to the answer, but the cause was tried as though a general denial had been filed, and we will so treat it.
On a trial of the cause on the merits, the court rendered judgment granting a permanent injunction in part and dissolving the temporary injunction in part, as above set out, and from that judgment the appellant (plaintiff) appealed, seeking to have the...
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