Pendleton v. Hubbard

• Decision Date: 30 November 1910
• Citation: 132 S.W. 696,231 Mo. 314
• Parties: PENDLETON et al. v. HUBBARD et al.
• Court: Missouri Supreme Court

132 S.W. 696

231 Mo. 314

PENDLETON et al. v. HUBBARD et al.

Supreme Court of Missouri, Division No. 1.

November 30, 1910.

1. EJECTMENT (§ 28)—EQUITABLE DEFENSES— ESTOPPEL in PAIS—AFFIRMATIVE RELIEF.

In proceedings to recover land, matter constituting an estoppeel in pais may be relied on by defendant as an equitable counterclaim on which to base a prayer for affirmative relief, though it is also a sufficient defense at law to a suit in ejectment.

2. JURY (§ 13)—RIGHT TO TRIAL BY JURY— EQUITABLE DEFENSE IN LEGAL ACTION.

Where defendants in ejectment seek affirmative relief of an equitable nature, they cannot complain that they were denied a trial by jury.

3. APPEAL AND ERROR (§ 907)—REVIEW—PRESUMPTIONS —SUFFICIENCY OF EVIDENCE.

In the absence of a bill of exceptions, it will be presumed on appeal that the trial court had before it evidence upon which to base the findings supporting its decree.

Appeal from Circuit Court, Lafayette County; Sam Davis, Judge.

Action by Catherine H. Pendleton and others against Joseph R. Hubbard and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Geo. H. English and M. D. Trefren, for appellants. Cook & Gossett, for respondents.

GRAVES, J.

This case is here upon the record proper. As to the title to the lands involved it deals with facts and records perfectly familiar to this court. Hubbard v. Slavens, 218 Mo. 598, 117 S. W. 1104. Plaintiffs are the widow and heirs at law of William K. Pendleton, and Dwight L. Pendleton, besides suing as an heir, further sues as a trustee under his father's will. It is alleged that, by reason of the will, the legal title is vested in the trustee. By the petition it is charged that William K. Pendleton in his lifetime was seised of an indefeasible estate in fee to a certain 50 acres of land, now a part of Kansas City, Mo., describing the same; that during his lifetime the said William K. Pendleton sold off portions of this tract and gave warranty deeds thereto; that since his death his trustee, Dwight L., has conveyed other portions and given warranty deeds thereto. A part yet remains unconveyed. The petition is one which seeks to quiet title to the whole fifty acres, and in great length recites in detail all of the alleged facts. It recites each and every conveyance from the deed by which Chester Hubbard acquired title. Joseph R. Hubbard and Ellen L. Jeffries are alleged to be the only heirs at law of Chester Hubbard, deceased.

The prayer of the petition in a way is a résumé of many of the pleaded facts, and reads: "Wherefore plaintiffs, on behalf of themselves and of all persons similarly situated, and of all persons claiming by, through, or under William K. Pendleton, deceased, or by, through, and under D. L. Pendleton, as trustee of the estate of William K. Pendleton, deceased, pray the court: (a) To order and adjudge the power of attorney executed by Chester Hubbard and Mary R. Hubbard, his wife, to John W. Summers, on September 16, 1856, and recorded in the office of the recorder of deeds of Jackson county, Mo., on October 16, 1856, in Book Z, at page 133, was a good and sufficient instrument authorizing John W. Summers to convey any and all property belonging to Chester Hubbard, including the lands hereinbefore specifically described as belonging to William K. Pendleton in his lifetime. (b) To order and adjudge that by reason of the mortgage and conveyance dated March 12, 1857, filed for record March 14, 1857, and recorded in the office of the recorder of deeds of Jackson county, Mo., in Book Z, at page 476, and again filed on March 7, 1859, in Book 30, at page 594, all of the right, title, and interest of Chester Hubbard, if any, in and to the land hereinbefore specifically described as belonging to William K. Pendleton in his lifetime, vested in Joseph C. Ranson, and thereafter by mesne conveyances passed from Joseph C. Ranson to William K. Pendleton and to those claiming by, through, and under him. (c) That by the warranty deed dated September 22, 1857, and filed for record in the office of the recorder of deeds in Jackson county, Mo., on October 5, 1857, and recorded in Book 25, at page 500, all of the right, title, and interest of Chester Hubbard in and to the land hereinbefore described as belonging to William K. Pendleton in his lifetime vested in Hezekiah H. King, and that by mesne conveyances such title has passed to and vested in William K. Pendleton and those claiming by, through, and under him. (d) That, by reason of all the matters, facts, and circumstances set up and alleged in the foregoing bill of complaint, Chester Hubbard and the defendants claiming by, through, and under him, be decreed and adjudged to be estopped and forever barred from setting up or claiming any right, title, or interest in and to any portion of the property hereinbefore specifically described as belonging to William K. Pendleton in his lifetime, and that they be restrained and enjoined from so doing. (e) Plaintiffs further pray that the title of...