Minton v. Steinhauer

• Citation: 147 S.W. 1014,243 Mo. 51
• Parties: JULIA MINTON et al. v. ALMARINDA STEINHAUER, Appellant
• Decision Date: 31 May 1912
• Court: Missouri Supreme Court

147 S.W. 1014

243 Mo. 51

JULIA MINTON et al. v. ALMARINDA STEINHAUER, Appellant

Supreme Court of Missouri, First Division

May 31, 1912

Appeal from Holt Circuit Court. -- Hon. W. C. Ellison, Judge.

Reversed and remanded.

T. C Dungan for appellant.

H. T Alkire for respondent.

BOND C. Brown, C., concurs.

OPINION

BOND, C.

Plaintiff brought ejectment for four lots as described in the dedication of land for a site for the town of Fortescue, Holt county, Missouri, made by Jacob Book and recorded on the 8th day of August, 1890. Defendant answered (1st) by a general denial; (2d) a plea of the Statute of Limitations, and (3d) that the lots in question were part of a tract of land purchased by one Book on April 7, 1887, and laid off and platted and dedicated to public use as a site for the town of Fortescue; that while he owned said land, the said Book sold to defendant the four lots described in plaintiff's petition and another small strip for twenty-five dollars per lot, to be paid when a good deed could be made; that defendant went into possession under this contract and before her grantor filed the plat of his dedication for record; that she built a house worth $ 400, a stable worth $ 100, and other improvements on said lots -- all aggregating $ 600; that subsequently litigation affecting the title of her grantor took place, wherein the deed held by him was adjudged to be a mortgage, and a redemption was had by the mortgagor, who afterwards conveyed the lands to plaintiff; that defendant offered plaintiff payment of the price which she agreed to give but plaintiff declined to receive it or to give her a deed; that his purchase was with full knowledge of her rights in the premises; that plaintiff by frauds and threats induced defendant to affix her name to the following contract, to-wit:

"Lease of Farm.

"This indenture made July 29, 1903, between John R. Minton, first party, and Almarinda Steinhauer, second party, Witnesseth: That first party, in consideration of covenants and agreements to be kept and performed by second party, demised and leased to second party all those premises in Holt county, Mo., described as follows, to-wit: Lots twelve (12), thirteen (13), fourteen (14) and fifteen (15) in block number one (1) in the town of Fortescue in Minton township, Holt county, Mo., as same are designated upon the recorded plat of said lot. To have and to hold for a term commencing on the 1st day of March, A. D. 1903, and ending on the last day of February, A. D. 1904.

"Second party agrees to pay said first party as rent for said premises ten ($ 10) in cash on or before the 1st day of December, 1903, second party nor her legal representatives to assign without written assent of first party and to deliver premises in good repair at termination of lease.

"It is understood that the buildings now standing upon said land belong to said Almarinda Steinhauer and she the said Almarinda Steinhauer is permitted to remove said house from said land at the termination of this lease. It is further positively understood and agreed that said second party waives any and all notice to quit said premises and promises to vacate said property at the termination of this lease and peaceably deliver up to said first party the possession thereof at the termination of this lease without any notice whatever so to do."

Defendant prayed that plaintiff be decreed to execute a deed to her upon payment of the purchase price of the lot. Issue was joined. There was evidence of a record title to the land in plaintiff, and that defendant had accepted from him the above lease of the land, and that plaintiff obtained from defendant twenty dollars, which he claimed was rent for two years, but which she claimed was a payment on the purchase price of the lots. Plaintiff testified he gave defendant a notice to terminate her tenancy on the 29th of January (the year not given) in thirty days from that date. The evidence was conflicting as to the acceptance of the lease by defendant. She testified that she signed the paper without reading or understanding it; that she did so because plaintiff and his attorney threatened to put her out of her house; that they came to her three times to get her signature. Plaintiff's attorney testified that he read the paper over to her.

The court rendered judgment for possession in favor of plaintiff and awarded him fifteen dollars and two dollars per month until possession given, and ordered a writ of restitution. Defendant appealed. Thereafter the plaintiff died, and the cause was revived in this court on October 10, 1911. On April 9, 1912, defendant filed in this court a motion to abate and dismiss plaintiff's action on the ground that prior to his death plaintiff had conveyed the land in fee to a third party.

OPINION.

I. Under the facts stated, this action does not abate. The motion to that effect is based upon a misconception of the applicatory law. [Smith v. Phelps, 74 Mo. 598; State ex rel. v. Philips, 97 Mo. 331; Wilson v. Darrow et al., 223 Mo. 520, 122 S.W. 1077; R. S. 1909, sec. 1924.] The fact that the plaintiff died after the judgment in his favor in the trial court and the lodgment of this case in this court by defendant's appeal, did not work an abatement of the action, since the cause of action belonged to that class which survives the "death, marriage or other disability of a party." It being one in which title and possession of real estate were the only issues involved and not a mere personal right to recover, which, with certain statutory exceptions, would abate under the common law upon the death of the party entitled to sue. [R. S. 1909, secs. 5425, 5426, 5427, 5428.] It follows that the revivor in this court after a sci. fa. and upon stipulation bringing in the heirs and legal representatives of the respondent was the proper and only method in which the action could have been revived in this court, except by consent of...