Nalle v. Parks

• Decision Date: 31 March 1903
• Citation: 73 S.W. 596,173 Mo. 616
• Parties: NALLE, Appellant, v. PARKS et al
• Court: Missouri Supreme Court

73 S.W. 596

173 Mo. 616

NALLE, Appellant, v. PARKS et al

Supreme Court of Missouri, Second Division

March 31, 1903

Appeal from Madison Circuit Court. -- Hon. Frank R. Dearing, Judge.

Affirmed.

William N. Nalle, pro se, with Anthony & Tesereau.

(1) The relations between cotenants, as owners of the fee in lands are those of trust and confidence, and are in no sense antagonistic. Jones v. Stanton, 11 Mo. 433. (2) The removal of any incumbrance, be it of whatever nature or kind enures to the benefit of all, and the possession of one is the possession of all the cotenants. (3) Contribution is the only remedy as between the tenant, who releases the title and land from the incumbrance, and the cotenant, and this remedy he may, or may not, assert. If he asserts it, he may be subrogated to the rights of his cotenant refusing to contribute his part, on demand. This demand and refusal must concur before any right of action arises. Jones v. Stanton supra. (4) Estoppel in pais and of record, must be certain in intent, in common, in general, and in every particular particularly as to the facts and resultant injury, and must be mutual. Lajoy v. Primm, 3 Mo. 529: Hemstead v. Easton, 33 Mo. 142; Sutton v. Dameron, 100 Mo. 141. (5) Respondents had full notice of appellant's title and estate in and to the property in controversy, for their grantor's title was, in a direct chain, derived from the common source and chain of title as that of appellant. Chouquette v. Barada, 28 Mo. 491; Speck v. Riggin, 40 Mo. 405; Muldrow v. Robinson, 58 Mo. 331; Meir v. Blum, 80 Mo. 179; Tidings v. Pitcher, 82 Mo. 103; Patterson v. Booth, 103 Mo. 402; Knox Co. v. Brown, 103 Mo. 103; Taaffe v. Kelley, 110 Mo. 127; Lowring v. Groomer, 110 Mo. 632; Poage v. Railroad, 24 Mo.App. 199; Bartlett v. Glascock, 4 Mo. 62; Rhodes v. Outcalt, 48 Mo. 367; Martin v. Jones, 72 Mo. 23; Davis v. Brisco, 81 Mo. 27; Fleckenstein v. Baxter, 114 Mo. 493.

Jos. J. Russell, Moses Whybark and B. B. Cahoon for respondents.

(1) This appeal is an attempt to recover in ejectment real estate, when in another action the appellant by seeking to recover the proceeds of its sale to Parks and wife and O'Bannon and the net rents from it, ratified the sales and deeds by Cahoon to Parks and wife and O'Bannon. In short, he, in the case of Nalle v. Cahoon, litigates his alleged money share in the land, and obtains a judgment in that suit, which is fully satisfied June 27, 1899, after he takes this appeal. This appeal under the facts disclosed is inequitable. Egan v. Mart, 71 Mo.App. 60. (2) Such other pending suit of Nalle v. Cahoon and said claim therein is shown in the record in this case in this court. The judgment rendered June 21, 1899, and the satisfaction thereof June 27, 1899, in Nalle v. Cahoon after the judgment in this case was rendered on June 20, 1899, can and should be considered by this court, and it is properly brought to the attention of this court for such consideration by respondent's motion and petition filed herein. Davis v. Packard, 6 Wend. (N. Y.) 327; State v. Caham, 18 L. R. A. 838; Dow v. Harper, 6 Ohio 27; Ex parte Toney, 11 Mo. 661; Powell v. Gott, 13 Mo. 461; Ex parte Truman, 44 Mo. 185; Weill v. Simmons, 66 Mo. 617; Ex parte Gray, 77 Mo. 161; Walker v. Deaver, 79 Mo. 674; 2 Tidd's Practice, 1191-2; Green & Myers' Practice, 433. (3) The attempt of appellant in the court below, as in this court, is, in this ejectment to seek to recover land principally on alleged equities between him and Cahoon, of which Parks and wife, the present owners of this twenty-two acres of land, have no concern, and of which they had no notice. In the absence of such notice, it was and is of no concern to Parks and wife what were the business transactions between Nalle and Cahoon. (4) Appellant in a plain ejectment is seeking to recover land against innocent grantees whose strict paper title is unquestionable. Even if it were not so, the extent of the issues in Nalle v. Cahoon and the obtaining and satisfaction of that judgment for $ 21.50 by Nalle, would preclude a recovery by appellant, for in that suit Nalle sues for his alleged share in all the land sold and conveyed by Cahoon to Parks and wife and to O'Bannon, as well as his alleged share in all rents from the same. Kingman v. Devies, 143 Mo. 519; Clay v. Mays, 144 Mo. 376; Finley v. Babb, 144 Mo. 403. To recover therein appellant must show a clear legal title to the land and a present right of possession, which he failed to do. Equitable claims are not sufficient on which to base ejectment. Hall v. Gregg, 138 Mo. 286; Hunt v. Sellect, 118 Mo. 538; Williams v. Carpenter, 135 Mo. 32; Waples on Homestead, p. 545. That election and the administrator's deed to Cahoon would have destroyed all dower and homestead claim had there ever been any, but there was none. (5) Even the outstanding deed of trust of Mary J. Gray, of August 21, 1890, to Hiram Berry, Jr., trustee, to secure the $ 250 note to Nalle, which he admits he sold, and no longer owns, though he claims he, as attorney, holds it for its owner to break for him (Nalle), if possible, the force of it being an outstanding title, was itself sufficient to defeat appellant's ejectment against Parks and wife, inasmuch as they are, so far as concerns this ejectment, the only substantial defendants in this case. Sell v. McAnaw, 138 Mo. 267; Baker v. Nall, 59 Mo. 265; Gurno v. Jains, 6 Mo. 330; Siemers v. Schrader, 88 Mo. 20; Bailey v. Winn, 101 Mo. 649; Eversole v. Rankin, 102 Mo. 488; Thompson v. Lyon, 33 Mo. 219; Norcum v. D'Oench, 17 Mo. 78. (6) The purchases by Cahoon of all the Gray land and his open record of all his three deeds thereto in 1891 and 1892 and his subsequent possession, followed as it has been by like adverse possession by Parks and wife, destroyed any alleged tenancy between Nalle and Cahoon. Snell v. Harrison, 104 Mo. 158; Aubuchon v. Aubuchon, 133 Mo. 216; Smith v. Washington, 88 Mo. 475.

OPINION

BURGESS, J.

This is an action of ejectment for the possession of twenty-one acres of land in Madison county. The petition is in the usual form. Ouster laid November 24, 1892.

Defendants by their answer deny all of the allegations in the petition, and, then allege that they are the owners of said real estate, and that it was conveyed to them by one Benjamin B. Cahoon, Sr., by general warranty deed on November 24, 1892, and that said deed was duly recorded in the recorder's office of said county. "That plaintiff has pending in the circuit court of said county an action against said Cahoon, wherein he approves and whereby he has approved of said conveyance and sale by said Cahoon of said land to said Parks and wife, and wherein he, the said Nalle, seeks to recover from said Cahoon the said Nalle's alleged share of the purchase money so paid by said Parks and wife to said Cahoon for real estate, by which said action and conduct these defendants charge that said Nalle is and should be estopped from prosecuting this action, and that to do so is inequitable on his part, in that he should not in this court (which defendants pray to take recognizance of its own records) at one and the same time seek to recover said real estate and at the same time seek in the same court to recover said Nalle's alleged share of the money paid by said O'Bannon (Parks and wife?) to said Cahoon for said real estate; for defendants state that by such suit against said Cahoon by said Nalle, said Nalle admits and is bound to admit the conveyance of said real estate by said Cahoon to said Parks and wife was right and proper, and that said Cahoon had good right to convey said land to said Parks and wife, and that he, the said Nalle, looks to and seeks to obtain from said Cahoon his alleged share (if any he has therein) of the money paid by said Parks and wife to said Cahoon for the whole of said real estate. Defendants further allege that by reason of the premises the present action by said Nalle is inequitable and inconsistent with his said suit against said Cahoon, and is wholly unjust; by this suit said Nalle is seeking to and is making of this court a vehicle to prosecute two suits at the same time in the same court for practically the same subject-matter, in this, that alleged suit being for the recovery of said real estate by said Nalle, and his said other suit against said Cahoon being for the recovery against said Cahoon by said Nalle of his alleged share, or interest in the proceeds of the sale of said real estate by said Cahoon to said Parks and wife, by which action he, the said Nalle, in fact as well as in equity, admits said Cahoon had good right and title to convey said real estate to said Parks and wife, and said Nalle thereby assumes the position that he, the said Nalle, is entitled to and seeks from said Cahoon his, the said Nalle's, alleged share of the money so received by said Cahoon from said Parks and wife for said real estate; that to permit said Nalle to prosecute this action while his said action against said Cahoon is, as it is now pending as aforesaid, inequitable; hence defendants pray that this cause be dismissed and stricken from the docket of said court."

Appellant's replication, omitting caption, is as follows "Plaintiff, replying to defendant's answer, states that it is not true that William Parks and wife are the owners of said real estate; they (are) the cotenants, or tenants in common, with plaintiff through and by the conveyance to them by said Cahoon, then and for a long time prior to said conveyance a tenant in common with plaintiff. Plaintiff, further replying, states that it is not true that in his said action against Cahoon, he, plaintiff, approves or has ever approved said conveyance by said Cahoon, other than to the extent that he, the said Cahoon, conveyed to said...