Peper v. St. Louis Union Trust Company
| Decision Date | 15 March 1920 |
| Citation | 219 S.W. 942,281 Mo. 562 |
| Parties | CAROLINE J. PEPER, Appellant, v. ST. LOUIS UNION TRUST COMPANY, Trustee Under Will of ADOLPHUS S. PEPER; MADELINE PEPER et al.; and MERCANTILE TRUST COMPANY and NICHOLAS M. BELL, Trustees Under Will of MARGARET P. BELL |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Rhodes E. Cave Judge.
Reversed and remanded (with directions).
Jones Hocker, Sullivan & Angert for appellant; James C. Jones, Jr. of counsel.
(1) The contract between the plaintiff and her father for the conveyance of this property to her was supported by an adequate consideration. Rumbold v. Parr, 51 Mo. 598; Gupton v. Gupton, 47 Mo. 37; Halsa v. Halsa, 8 Mo. 303; Sutton v. Hayden, 62 Mo. 101; Underwood Typewriter Co. v. Century Realty Co., 220 Mo. 530; Williams v. Jensen, 75 Mo. 685; Brannock v. Magoon, 141 Mo.App. 320; Welch v. Whelpy, 62 Mich. 15; Lamb v. Henman, 46 Mich. 112; Soper v. Galloway, 129 Iowa 145, 105 N.W. 399; Brown v. Sutton, 129 U.S. 238. The contract relied upon has been executed and the insufficiency or inadequacy of the consideration is no defense to a right or interest claimed under an executed contract. Sooey v. Winter, 188 Mo.App. 156; Harrison v. Town, 17 Mo. 243; In re Lamb, 117 N. W. (Iowa) 1118; Oregon Ry. v. Forrest, 28 N. E. (N. Y.) 137; Thomas v. South Haven Ry., 138 Mich. 50; Matt v. Johnson, 55 So. 528; Campbell v. McLaughlin, 205 S.W. 22. (2) Possession of property taken under a verbal contract takes said contract without the operation of the Statute of Frauds. Dickerson v. Chrisman, 28 Mo. 134; Ross v. Alyea, 197 S.W. 268; White v. Ingram, 110 Mo. 474; Brown v. Sutton, 129 U.S. 238; Neale v. Neale, 9 Wall. 1; Marphet v. Jones, 1 Swanst. 172; Clerk v. Wright, 1 Atk. 12; Pain v. Coombs, 1 De G. & J. 34; Wilson v. West Hanpool Ry. Co., 2 De G. & S. 475; Vugley v. Vugley, L. R. 4 Ch. Div. 73, affirmed L. R. 5 Ch. Div. 890; Blockney v. Ferguson, 8 Ark. 272; Arnold v. Stephenson, 79 Ind. 126; Fellon v. Smith, 84 Ind. 485; Robinson v. Throckill, 110 Ind. 117; Edwards v. Fry, 9 Kan. 417; Green v. Richards, 23 N.J.Eq. 32; Coggswell, etc. Co. v. Coggswell, 40 A. 213; Calauchini v. Brausleiter, 84 Cal. 249; Eaton v. Whitaker, 18 Conn. 222, 44 Am. Dec. 586; Cooney v. Timmons, 16 S.C. 378; Browne on Statute of Frauds (5 Ed.), secs. 467, 487. (3) Continuous and adverse possession for a period of over ten years of the property in suit vested in plaintiff the legal title thereto in fee simple. Eckey v. Inge, 87 Mo. 495; Merchants' Bank v. Evans, 51 Mo. 347; Kirten v. Bull, 168 Mo. 633; Ridgeway v. Holliday, 59 Mo. 453; Sconnell v. American Soda Fountain Co., 161 Mo. 606.
Leahy & Saunders for respondents.
(1) There is no evidence under the issues presented by the pleadings to support a decree in favor of plaintiff. Plaintiff's attitude under her amended petition is that of a purchaser for value, and a decree in her favor upon the theory of a gift would necessarily have been outside of the issues of the case and consequently void. Christian v. Ins. Co., 143 Mo. 461; McNair v. Biddle, 8 Mo. 257; 3 Ency. Pl. & Pr. 357; Story's Eq. Pl. sec. 257; Flewellen v. Crane, 58 Ala. 627; Marsh v. Mitchell, 26 N.J.Eq. 497. (2) The Statute of Frauds (R. S. 1909, sec. 2781) provides that all estates in lands made or created by parol, and not put in writing and signed by the parties so making or creating the same, shall have the force and effect of leases or estates at will only, and shall not, either in law or in equity, be deemed or taken to have any other or greater force. Delventhal v. Jones, 53 Mo. 460. Notwithstanding the letter of the statute, courts of equity will still enforce a parol gift or sale of real estate, where it appears that a refusal to do so would, by reason of the acts of the donee or vendee, as the case may be, upon the faith of such gift or sale, operate as a fraud upon such party (Rosenwald v. Middlebrook, 188 Mo. 58). (3) The great weight of authorities, however, is to the effect that delivery of possession alone is not sufficient, but that the donee must further show that, acting upon the faith of the gift, he has in some way changed his position to a substantial detriment so that a refusal to consummate the gift would be a pecuniary loss to him and an act of injustice. Beach on Contracts, sec. 701; Pomeroy on Contract (Spec. Perf), secs. 130-1; Brown on Stat, Frauds, secs. 467, 491a; Thornton on Gifts, secs. 371-2, 378-9; Waterman on Spec. Perf. sec. 271; 20 Cyc. 1200; 14 Am. & Eng. Ency. Law, 1041; Caldwell v. Williams. 1 Bailev's Equity (S. C.) 175; Logue v. Langan, 81 C. C. A. 271; Allison v. Burns, 107 Pa. St. 50; Seavey v. Drake, 62 N.H. 395; Wiley v. Charlton, 43 Neb. 840; Neale v. Neale, 9 Wal. 1; Bevington v. Bevington, 110 N. W. (Ia.) 840; Harrison v. Harrison, 36 W.Va. 556; Beall v. Clark, 71 Ga. 818. If the improvements are slight or trivial, not equal to the rental value of the property, no equity is raised in favor of donee. Thornton on Gifts, secs. 378-9; Wack v. Sarber, 2 Whar. (Pa.) 387; Hutchinson v. Chandler, 104 S.W. 434; Thompson v. Ray, 92 Ga. 285; Price v. Lloyd, 86 P. 767; Cook v. Erwin, 133 S.W. 897; Sitton v. Shipp, 65 Mo. 297; Brownlee v. Fenwick, 103 Mo. 420, 428; Goodman v. Cowley, 161 Mo. 657, 663; Goodin v. Goodin, 172 Mo. 48; Forester v. Sullivan, 231 Mo. 373; Elzman v. Elzman, 253 Mo. 175; Rodgers v. Wolff, 104 Mo. 9; Emmel v. Hayes, 102 Mo. 194; Hubbard v. Hubbard, 140 Mo. 303; Manning v. Berry, 142 Iowa 47. (4) Plaintiff has not acquired the legal title in fee simple to the property by adverse possession. This action was instituted January 27, 1904, and on June 5, 1907, an answer and cross bill was filed on behalf of all defendants, which an swer and cross-bill is similar in its nature to the various answers and cross-bills in the present case. That the Statute of Limitations must be affirmatively pleaded is elementary. Rozier v. Griffith, 31 Mo. 171; Real Est. Sav. Inst. v. Colonius, 63 Mo. 290; Woodsworth v. Tanner, 94 Mo. 124; Paris v. Haly, 61 Mo. 453; Holloway v. Holloway, 97 Mo. 628; James v. Gropp, 157 Mo. 420; Barnard v. Keithley, 230 Mo. 223. In all these cases, the principle upon which the court acts is that, when a court of chancery has jurisdiction of the subject-matter and of the parties, it will, in order to prevent multiplicity of suits and circuity of action, administer full and complete relief in the premises. Snyder v. Arn, 187 Mo. 165. The prayer for partition in the cross-bills certainly challenged the adverse claims of plaintiff and, in effect, asserted that the defendants and plaintiff owned the property in question as cotenants, which necessarily negatived the idea that plaintiff was the sole owner of the property. Was not this sufficient to stop the running of the statute? Furthermore, as a practical question, we should like to inquire what the defendants ought to have done in this case to stop the running of the statute? They could not ingraft upon the partition statute any peculiar form of action, or change its provisions. Should they have filed a suit for ejectment in order to protect their interests? If so, how could the suit have been maintained when it was admitted that plaintiff was a cotenant and entitled to a share of the property? Should she have been enjoined from prosecuting this suit? Should the court have been asked in the cross-bill to place the defendants bodily in possession of the home and permit them to share it with plaintiff? 2 Wood (4 Ed.), p. 1196, sec. 253a (I); 25 Cyc. 1278, par. H; Norton v. Reed, 253 Mo. 236; Estes v. Nell, 140 Mo. 650; Snell v. Harrison, 131 Mo. 500.
OPINION
In Banc
This is a suit to determine the title to a parcel of ground with a dwelling house situated thereon known as No. 4448 Washington Boulevard, St. Louis, Missouri. The suit was commenced in the Circuit Court of the City of St. Louis, on January 27, 1904. This is a second appeal in this case. The first appeal was reported in 241 Mo. 261, but none of the points involved in the present appeal were involved in the first appeal. On February 25, 1916, plaintiff filed her fourth amended petition herein upon which the case was tried below. The petition in substance alleges:
First. That she is the owner in equity of the land described in petition; that one Christian Peper in his lifetime had the legal title to said premises, subject to plaintiff's equitable right to set up in the petition; that he died on the day of September, 1903, leaving as his children and sole heirs at the law this plaintiff, and Adolphus S. Peper, Charles G. Peper, Margaret P. Bell and Frederick C. Peper; that he left a will and testament which were duly probated; that the will contained no specific devise of the property now in controversy, but named the above children and Christian Cornelius, otherwise known as Christian Peper, Jr., as residuary devisees and legatees under his will, and that they thereupon succeeded to the legal title to said premises, subject to plaintiff's equitable claim. That Frederick C. Peper and Christian Peper, Jr., afterwards conveyed their right, title and interest in and to said property to the plaintiff. The answer further alleges the death of some of the children since this suit was instituted and sets forth the names of their respective heirs etc. (all of whom were made defendants herein).
Second. That prior to October, 1898, said Christian Peper promised to buy for plaintiff a lot of ground and to build a residence thereupon and to convey the same to this plaintiff. The petition then alleges the following:
"Plaintiff states that when the said Christian Peper promised, as aforesaid, to purchase...
To continue reading
Request your trial