Meyer v. Wise, 36042.

• Decision Date: 22 November 1939
• Docket Number: No. 36042.,36042.
• Citation: 133 S.W.2d 321
• Parties: MEYER v. WISE et al.
• Court: Missouri Supreme Court

133 S.W.2d 321

MEYER v. WISE et al.

No. 36042.

Supreme Court of Missouri, Division No. 2.

November 22, 1939.

Appeal from St. Louis Circuit Court; Wm. S. Connor, Judge.

Suit by Harry L. Meyer against Elsie Wise, G. Barron, and Louis Blumenfeld, doing business as the Blumenfeld Realty Company, and Roland A. Wise, to quiet title to realty. Judgment for plaintiff, and defendant Roland A. Wise appeals.

Affirmed.

Hugh D. McCorkle, of St. Louis, for appellant.

Heideman & Heideman, of St. Louis, for respondent.

WESTHUES, Commissioner.

Respondent, plaintiff below, filed this suit in the circuit court of the city of St. Louis for the purpose of quieting his title to certain real estate. In the first count plaintiff sought to cancel contracts for the sale of said real estate and also a quitclaim deed. In the second count he asked the court to try and determine title. The trial court rendered a decree in plaintiff's favor on the second count, and defendant Roland A. Wise appealed.

The property in controversy consisted of a two-family brick flat, located in the city of St. Louis, and known as 4833 Maffitt avenue, being a part of lot number 42 in block number 5014. The record title, insofar as pertinent to the issues, disclosed the following: On September 3, 1926, this property was conveyed to Louis Meyer, father of the plaintiff herein. On October 6, 1926, Louis Meyer entered into a contract to sell said real estate to Elsie Wise. On the same day Louis Meyer entered into a similar contract with one G. Barron and Louis Blumenfeld to exchange said property for real estate located in Texas. Louis Meyer died November 15, 1926, leaving a will wherein he devised the above real estate to his son, plaintiff herein. The will was duly probated. On March 15, 1932, Elsie Wise conveyed her interest in said property by quit-claim deed to appellant Roland A. Wise. All of the parties named in the contracts and appellant were made defendants. Since Roland A. Wise is the only appellant we need not further notice the other defendants.

Respondent in his petition, which was filed on November 7, 1936, alleged that he was the record owner of the property, and further that he and those under whom he claimed, had acquired title by adverse possession. Plaintiff also alleged that the provisions of the contracts above mentioned were never consummated by a delivery of deeds. He alleged that claimants claimed some right or title in said real estate. Appellant filed an answer admitting the execution of the contract between Louis Meyer and Elsie Wise, and alleged further that the contract provided that Louis Meyer was to execute and deliver a warranty deed conveying said property to Elsie Wise on or before October 30, 1926. It was further alleged that Louis Meyer failed to perform his contract, but concealed himself, and that plaintiff participated in keeping Louis Meyer in hiding and was active in preventing him from fulfilling the contract. Appellant sought specific performance of the contract, an accounting for the rents and profits, and also asked that in case plaintiff should be decreed the title that plaintiff be required to pay the appellant the sum of $100 which was paid to Louis Meyer by Elsie Wise when the contract was signed; that he be allowed the expense of the examination of the title, his commission of $250 and $500 for loss of a reasonable profit. Plaintiff in reply pleaded various statutes of limitations to the claims set up in appellant's answer. Appellant in turn filed a replication.

The evidence on the part of both respondent and appellant pertained in the main to the question of whether the statute of limitations had run so as to vest in respondent a title by adverse possession. Appellant insists that Louis Meyer at no time during his life refused absolutely to perform his contract, but that he was kept in seclusion and prevented from conveying the property to Elsie Wise by plaintiff in this case. It is urged that plaintiff therefore filed his suit before ten years had elapsed after a cause of action had accrued. The trial court found otherwise and the record sustains the court's finding. Roland A. Wise, appellant, testified that he signed the contract acting as agent for Elsie Wise. So far as the record discloses Elsie Wise never saw either Louis Meyer or his son, the plaintiff in this case. Wise testified that after the contract was signed he had the title examined and prepared the papers to close the deal; that Louis Meyer came to his office and wanted to call off the deal by paying $100, because he, Meyer, claimed that a stove which was included in the deal belonged to his son. Wise then released his claim to the stove. Wise testified that Meyer informed him that he had contracted with Blumenfeld for the exchange of this property for property in Texas. The evidence showed that Wise attempted to adjust this matter but Meyer failed to appear at the appointed time. Wise made further attempts to have the contract carried out but without success. Wise testified he was informed by plaintiff that Louis Meyer was ill and incapable of transacting business; that plaintiff refused to state the whereabouts of his father; that he, Wise, later located Louis Meyer at the city hospital. Wise also testified that plaintiff informed him that the contract would not be carried out and referred him to Heideman, an attorney, who would thereafter handle the matter. As to what happened thereafter Wise testified as follows:

"And then a couple days after that I did call on his lawyer, that is you, at your office. We had a conversation. I told you about the matter and you told me that Mr. Meyer was insane and that he wasn't able to go ahead with deal and that he had been sent to a sanitarium on the doctor's advice. And I said we put up earnest money, etc., you said we would give you the $100.00 back if you wanted to call the whole thing off.

"Q. Didn't I say with interest also? A. No, and I said we went to expense of title and what about that, and you said we will just give you the $100, and then I left.

"Q. After that did you telephone me you had turned it over to your attorney? A. The next time I saw you was on or about Oct. 28th and I came in and told you we were ready to close the deal and...