Norton v. Reed

• Decision Date: 13 March 1920
• Docket Number: No. 20934.,20934.
• Citation: Norton v. Reed, 281 Mo. 482, 221 S.W. 6 (Mo. 1920)
• Parties: NORTON et al. (JOHNSON, Intervener) v. REED et al. (ZIMMERMAN et al., Interveners).
• Court: Missouri Supreme Court

221 S.W. 6

281 Mo. 482

NORTON et al. (JOHNSON, Intervener) v. REED et al. (ZIMMERMAN et al., Interveners).

No. 20934.

Supreme Court of Missouri, Division No. 2.

March 13, 1920.

Appeal from Circuit Court, Butler County; J. P. Foard, Judge.

Action by Minnie A. Norton and others against Isaac F. Reed and others, in which Ida Herlick and F. Louis Zimmerman intervene as defendants. From judgment denying to John R. Johnson the right to be substituted as a plaintiff, he appeals. Reversed and remanded, with directions.

On October 23, 1907, Minnie A. Norton, Catherine Dougherty, John C. Vandyke, and James T. Vandyke, as plaintiffs, filed in the circuit court of Reynolds county, Mo., a petition in ejectment against Isaac F. Reed and Martin Burnham, as defendants, to recover possession of an undivided four-fifths of the following described real estate located in said county, to wit:

"All of the west half of the east half of lot 2 of the northwest quarter of section 5 in township 29 of range 1 east, except a strip 105 feet wide off of the south end thereof."

Five suits in ejectment were filed by the same plaintiff on the same day, in the same court, against separate and distinct defendants. The title of the several defendants to the several tracts of land involved in said several suits depended in each case upon the sufficiency of a certain administrator's deed purporting to convey all of the land involved in said five suits to a common grantor of all the defendants in said five actions. In the present action the defendants were served with process on October 23, 1907, and thereafter answered in said cause.

It is admitted by counsel in the present controversy that Benjamin C. Vandyke, the father of plaintiffs, was the common source of title. Benjamin C. Vandyke died in said county on July 14, 1884, intestate, and left as his only heirs at law the above-named plaintiffs and the minor children of his deceased daughter, Bertie D. Cooper, namely, Bessie Cooper, Morey Cooper, Carter Cooper, Charles Taylor, and Clarence Taylor. The plaintiffs herein claimed to be the owners of the undivided four-fifths of said real estate as tenants in common with the children of said Bertie E. Cooper, deceased, who claim to have owned an undivided one-fifth of same. The date of ouster is named as August 4, 1901.

On December 5, 1907, during the November term, 1907, of the Reynolds circuit court, and after the above-named defendants herein had been served with process and answered in said cause, a stipulation was filed therein by the respective parties thereto which, without caption and signatures, reads as follows:

"It is stipulated and agreed by and between the parties, plaintiffs and defendants, in the above-entitled cause, that this cause shall stand continued in this court until a final judgment is entered either in this or in the Supreme Court in the ejectment case of the same plaintiffs against Joseph A. Reed, tried in this court and involving the same title.

"Upon the entry of a final judgment in said case of Minnie A. Norton et al. v. Joseph A. Reed either in this court or in the Supreme Court, then either party to this suit may move for judgment in this court in this case, and shall be entitled to a judgment for either the plaintiffs or the defendants as may have been determined in said suit against Joseph A. Reed, but in case the judgment so entered is for plaintiffs for possession, the parties may give evidence as to the rents and profits in this case, but all other issues shall be determined by such final judgment in said case against Joseph A. Reed."

Said stipulation was signed by Attorneys J. B. Daniel, John H. Raney, and R. L. McLaren in behalf of said plaintiffs, and by S. L. Clark and R. I. January as attorneys for defendants herein.

After one of said five suits had been tried in the circuit court of Reynolds county, Mo., to wit, that of Minnie A. Norton et al. v. Joseph A. Reed, the stipulation aforesaid was filed herein. The above-named case against Joseph A. Reed was decided by the circuit court in favor of plaintiffs, and defendant duly appealed said cause to the Supreme Court of Missouri, where it will be found reported in 253 Mo. at pages 236, 237, 161 S. W. 842. The Supreme Court, on December 6, 1913, affirmed the judgment of the Reynolds circuit court in the above cause.

Thereafter, before the next term of the Reynolds circuit court, plaintiffs in the present suit sold all their interest in the subject-matter of this action to said defendant Joseph A. Reed, who thereafter executed a deed conveying to the intervener herein John R. Johnson all of the land involved in this suit. Said deed from Joseph A. Reed to said John R. Johnson was duly recorded in Reynolds county on September 5, 1914. By the terms of said sale between plaintiffs and said Joseph A. Reed it was agreed that said Reed should, and he did, pay all the costs in this suit. Thereafter, on November 25, 1914, an order was entered of record in this cause in the circuit court of Reynolds county reciting, after the caption, the following:

"Dismissed by plaintiffs, all costs having been paid."

Thereafter, on November 29, 1916, John R. Johnson, as intervener herein, filed in this cause a motion in the nature of a writ of error coram nobis setting out the facts aforesaid, and praying to be substituted as plaintiff herein, instead of the plaintiffs, who had after suit filed, and before judgment rendered, parted with their interest in the subject-matter of this suit, averring that said order of dismissal was erroneously made, and praying that the same be set aside, and judgment rendered herein upon the stipulation aforesaid. Said Johnson, for convenience, will hereafter be designated as appellant.

At the time of the institution of this suit the defendant Isaac F. Reed appeared by the records of Reynolds county, Mo., to be the record owner of the lands in controversy, if said administrator's deed passed any title thereto, and the said defendant, with Martin Burnham, were in the actual possession thereof.

As above indicated, this suit was filed October 23, 1907. A like suit involving the same subject-matter, for the same plaintiffs, and against the same defendants, had theretofore been filed. Plaintiffs had suffered a nonsuit, and thereafter, within one year after said nonsuit, filed the present action. The defendant Isaac F. Reed on October 22, 1907, one day before the filing of this suit, had executed a deed to one J. C. Webb purporting to convey to him the lands in dispute, but the deed was not filed for record until the day after the filing of this suit. Thereafter the said J. C. Webb executed a deed purporting to convey these lands to his then wife, now Ida M. Herlick, who thereafter executed a mortgage purporting to convey said lands to F. Louis Zimmerman to secure a note for $600. After the filing of said motion by appellant, John R. Johnson, the said Ida M. Herlick and F. Louis Zimmerman were by the Reynolds circuit court permitted to intervene as parties defendant in lieu of their remote grantor, Isaac Reed, and filed objections to the setting aside of said nonsuit. The last-named interveners will be designated hereafter as respondents.

The venue was changed, and the above cause, between appellant and respondents, was sent to the circuit court of Butler county, Mo., where it was heard on the 27th day of April, 1917, and judgment rendered denying to said John R. Johnson the right to be substituted as a plaintiff herein.

Appellant, in due time, filed his motion for a new trial, which was overruled, and the cause duly appealed by him to the Springfield Court of Appeals. The latter court, on account of title to real estate being involved, transferred the cause to this court.

Arthur T. Brewster, of Ironton, Buford & Chitwood, of Ellington, and J. B. Daniel, of Piedmont, for appellant.

R. I. January, of Centerville, and J. H. Keith, of Ironton, for respondents.

RAILEY, C. (after stating the facts as above).

1. The case of Minnie A. Norton et al. v. Isaac F. Reed et al. was pending in the circuit court of Reynolds county, Mo., on November 25, 1914, with the stipulation aforesaid on file therein between all the parties to said action as to the final disposition of this cause. Prior to above date said plaintiffs, on May 27, 1914, by quitclaim deed, conveyed to Joseph A. Reed all their right, title, and interest in the land in question and to any damages for rents and profits thereon. On December 27, 1913, plaintiff James T. Vandyke conveyed by quitclaim deed to said Joseph A. Reed all his interest in the lands aforesaid and in the damages due him for rents and profits thereon. On September 7, 1914, Joseph A. Reed conveyed by deed to appellant, John R. Johnson, all his right, title, and interest in the lands aforesaid, which last-described deed was duly recorded in Reynolds county on said September 7, 1914. It is contended by respondents in their brief that the conveyances supra did not convey to said Johnson the right to be substituted as plaintiff in this action and to enforce the provisions of said stipulation; in other words, it is asserted in respondents' brief, page 8, that:

"Some causes of action may be assigned, but our statute (section 1729, R. S. 1909) prohibits an assignment of a thing in action not arising out of contract."

This contention is without merit. Wiehtuechter v. Miller, 276 Mo. 322, 208 S. W. loc. cit. 41; McGinnis v. McGinnis, 274 Mo. loc. cit. 296, 297, 202 S. W. loc. cit. 1090; Remmers v. Remmers, 217 Mo. loc. cit. 561, 117 S. W. 1117; Chouteau v. Boughton, 100 Mo. loc. cit. 410, 13 S. W. 877; Snyder v. Railroad Co., 86 Mo. 613; Coffman v. Railroad, 183 Mo. App. 622, 167 S. W. 1053; Brown v. Railroad Co., 198 Mo. App. loc. cit. 76. 199 S. W. 708. The rights of appellant, Johnson, must therefore be determined on the theory that he was entitled to be substituted as plaintiff in this case in lieu of the original plaint...