Peper v. Peper

• Decision Date: 21 March 1912
• Parties: PEPER v. PEPER et al.
• Court: Missouri Supreme Court

145 S.W. 408

PEPER v. PEPER et al.

Supreme Court of Missouri, Division No. 2.

March 21, 1912.

1. APPEAL AND ERROR (§ 933)—REVIEW—PRESUMPTIONS—NEW TRIAL.

Where the bill of exceptions of one appealing from an order granting a new trial fails to set out such order, it will be presumed that the new trial, if sustainable under any of the grounds of the motion, was based on such grounds.

2. APPEAL AND ERROR (§ 856)—DETERMINATION—ORDER GRANTING NEW TRIAL.

An order granting a new trial will be affirmed if sustainable upon any ground found in the motion for a new trial, even though another ground was assigned by the trial court.

3. APPEAL AND ERROR (§ 854)—REVIEW — NEW TRIAL.

An appeal from an order granting a new trial presents only the ruling on the motion for review, and the order, if based on the ground that the verdict was against the weight of the evidence, must be affirmed if there is substantial evidence in conflict with the verdict.

4. APPEAL AND ERROR (§ 1144)—DETERMINATION—AFFIRMANCE.

Upon affirmance of an order of the trial court granting defendants' motion for a new trial after judgment determining and quieting plaintiff's title to the land, the Supreme Court cannot give judgment for defendants, but must remand the case for new trial.

Appeal from St. Louis Circuit Court; D. G. Taylor, Judge.

Action by Caroline J. Peper against Adolphus S. Peper and others. From an order granting defendants a new trial after judgment for plaintiff, plaintiff appeals. Affirmed.

Jones, Jones, Hocker & Davis, for appellant. Jos. S. Laurie, for respondents.

KENNISH, J.

This is an appeal from an order of the circuit court of the city of St. Louis sustaining a motion for a new trial. The action was brought under section 650, Revised Statutes 1899, for the purpose of having the title of the parties to the suit ascertained and adjudged in and to the real estate described in the petition. Plaintiff is the daughter of Christian Peper, deceased, spoken of in the testimony as Capt. Peper, and the defendants are the two sons and a daughter of the said Capt. Peper, also the husband of the daughter defendant, and the wife of one of said sons. The real estate in controversy is residence property in said city of St. Louis, particularly described in the petition, and of the value of about $42,000.

It is alleged in the petition, in short, that plaintiff is the equitable owner of the property described; that the said Christian Peper in his lifetime promised to buy a lot of ground in said city and improve it by building a suitable residence thereon and to give the same to plaintiff; that in the year 1898 the said Christian Peper did buy the lot described, built a residence thereon, and gave the said lot and improvements to plaintiff; that plaintiff did then and there accept said property and entered into possession of the same, and has retained possession thereof, adversely to every other person, until the institution of this suit, but that said Christian Peper died without having made a deed to plaintiff to said property. It is further alleged that, in consideration for said property, plaintiff and her daughter were to entertain said Christian Peper by performing on the piano, and by providing a place where he could visit and dine with plaintiff and her family daily; that these conditions were fully performed by plaintiff; and that plaintiff improved and beautified said lot with flowers and fruit and ornamental trees upon the faith of said gift, etc. The prayer is that the right, title, and interest of the parties to the suit be ascertained and adjudged by the decree and judgment of the court. The answer contains as defenses a general denial, a defense of the statute of frauds, and an affirmative defense alleging title to said property in Christian Peper at the time of his death; that said Christian Peper devised said property by his last will and testament to the parties plaintiff and defendant, and prays the court to adjudge the title of said parties thereto, in accordance with the provisions of said will; that, having ascertained the title and interest of the parties, the court will order and decree partition and sale of the property, and that the proceeds be divided between the parties according to their respective interests, after deducting from plaintiff's share such sum as may be due from her as rent for the use and occupancy of said premises. The reply was a general denial.

Plaintiff introduced evidence tending to prove these facts: Capt. Peper was a very wealthy tobacco manufacturer, engaged in business in the city of St. Louis. He had long made his home in the outskirts of the city with his daughter, Mrs. Bell. His other daughter, the plaintiff, was a widow with two children, and for many years before his decease he had supported her and her family. Plaintiff lived nearer the business portion of the city than Mrs. Bell, and Capt. Peper was in the habit of going from his place of business to plaintiff's home for his noonday lunch, and remaining there for some time thereafter, listening to music and being entertained by the plaintiff and her daughter. In the year 1898 he suggested the purchase of a lot upon which to build a home for plaintiff. The latter selected the lot. A house was built thereon and furnished, all of which was paid for by the father. There was also testimony tending to prove that Capt. Peper made statements to the effect that he was building a house for the plaintiff; that he was going to build a house for plaintiff, and then he was going to build a house for his other daughter, Mrs. Bell; that he had built the house where his daughter lived and had given it to her. There was much testimony as to statements of the character of the foregoing.

On cross-examination the following facts were brought out: That as long as Capt. Peper lived he had the property in controversy assessed in his own name and paid the taxes thereon, and that for several years after his decease such taxes were paid out of his estate. The legal title to the property was in Capt. Peper at the...