Peterson v. Larson

• Citation: 225 S.W. 704,285 Mo. 119
• Parties: SALLIE LARSON PETERSON et al. v. ERIC LARSON et al., Appellants
• Decision Date: 02 December 1920
• Court: United States State Supreme Court of Missouri

225 S.W. 704

285 Mo. 119

SALLIE LARSON PETERSON et al. v. ERIC LARSON et al., Appellants

Supreme Court of Missouri, First Division

December 2, 1920

Appeal from Jackson Circuit Court. -- Hon. T. J. Seehorn, Judge.

Affirmed.

L. A Laughlin for appellants.

(1) The finding of the court is not responsive to the pleadings and the judgment upon the record is erroneous. Boeckler v Railroad, 10 Mo.App. 448; Koehler v. Rowland, 275 Mo. 581; Lee v. Conran, 213 Mo. 404; Hauser v. Murray, 256 Mo. 58; Minor v. Burton, 228 Mo 558; Brandt v. Bente, 177 S.W. 377. (2) The court erred in refusing to grant a new trial on the ground of the mistake in his testimony made by Eric Larson. Sec. 2022, R. S. 1909; Ridge v. Johnson, 129 Mo.App. 546; Rickroad v. Martin, 43 Mo.App. 597; Beveridge v. Chetlain, 1 Ill.App. 231; Rolling Mill Co. v. State, 54 Ga. 635; Warren v. Hope, 6 Me. 479; Cooper v. Vaughan, 107 Ark. 498; Trummier v. Darden, 61 S.C. 220; Dudgeon v. Hackley, 182 S.W. 1004; Uhl v. Small, 54 Kan. 651.

Inghram D. Hook and Harding, Deatherage, Murphy & Stinson for respondents.

(1) The second count, asking the court to set aside the quit-claim deed, which relief could only be granted by a court of equity was clearly determinative of its character as a pleading addressed to the equity side of the court under the statute. It was not necessary for the pleader to go further than to set out the fact that the deed was on record by which the defendants claim a title adverse to plaintiffs and then follow the language of Section 2535. The allegation of other traversable facts necessary in ordinary actions was not required. Hauser v. Murray, 256 Mo. 85; 2 Story's Equity Jurisprudence (14 Ed.), sec. 931; Bispham's Equity (9 Ed.), sec. 31; Murphy v. Barron, 205 S.W. 49; Hudson v. Wright, 204 Mo. 423; Huff v. Land Company, 157 Mo. 65; Spore v. Land Company, 186 Mo. 656; Toler v. Edwards, 249 Mo. 161. (2) The court did not err in refusing to grant a new trial. Paper Co. v. Luney, 68 Mo.App. 7; Byrd v. Vanderburgh, 168 Mo.App. 112; Parker v. Britton, 133 Mo.App. 273. (3) Even if the facts recited in the affidavit in support of the motion for new trial were given absolute verity, they could not possibly have changed the result. Larson was absolutely precluded from acquiring a title adverse to the plaintiffs, both by virtue of the fiduciary relationship in which he stood towards his minor children and also because he was a life tenant. Fountain v. Starbuck, 209 S.W. 900; Construction Co. v. Whitnell, 190 Mo.App. 42; Hauser v. Murray, 256 Mo. 86; Armor v. Frey, 253 Mo. 474; Moran v. Stewart, 246 Mo. 462.

RAGLAND, C. Brown and Small, CC., concur. Woodson, J., not sitting.

OPINION

RAGLAND, C. --

Statutory action to quiet title. The pleadings and judgment, so far as pertinent to the questions involved on this appeal, are as follows:

"Plaintiffs for their second cause of action against defendants state that they are the owners in fee simple and claim that title to the following real estate in Jackson County, to-wit: Lot 21, Block 1, New South Moreland, an addition in and to Kansas City, Missouri.

"Plaintiffs state that the defendants have placed on record a deed dated November 9, 1905, and recorded June 4, 1914, indicating that they claim some title, estate or interest in and to said property adverse to the estate and title of the plaintiffs.

"Wherefore plaintiffs pray that the court try, ascertain and determine the estate, rights, title and interest of the plaintiffs and defendants herein, and by its judgment and decree set aside said deed, and define and adjudge the estate, rights, title and interest of plaintiffs and defendants in and to said property according to the statute in such cases made and provided, and for their costs in this behalf expended."

The answer reads: "Defendants for answer to plaintiffs' second cause of action deny each and every allegation in said petition contained. Wherefore, defendants ask judgment that they go hence without day."

The judgment is as follows: "On the second count of plaintiff's petition the court finds the facts to be as follows:

"That Anna Larson in her lifetime was the owner in fee simple of Lot Twenty-one of Block One of New Southmoreland, an addition in and to Kansas City, Jackson County, Missouri, together with the improvements thereon and appurtenances thereto belonging; that said Anna Larson died intestate on or about the 28th day of January, 1903, survived by her husband, the defendant Eric Larson, and four children, to-wit, the plaintiffs, Sallie Larson Peterson, Anna Larson and Lillie Larson and Agda; Larson; that said Agda Larson died intestate on or about February 3, 1903, while an infant and unmarried; that plaintiff Sallie Larson Peterson is now twenty-four years of age; the plaintiff Anna Larson is now twenty years of age, and the plaintiff Lillie Larson is now eighteen years of age; that the defendant Eric Larson is the father of the plaintiffs.

"That at the time of the death of said Anna Larson, the property hereinabove mentioned had been sold in November, 1901, by the city of Kansas City for failure in the payment of the annual general city tax on said property for the year 1901, a tax certificate having been issued to T. A. Matthews in the month of November, 1903; that under the provisions of the then existing charter of Kansas City, Missouri, the owner of property sold for failure to pay annual city taxes had a period of two years from such sale in which to redeem said property from said sale; that at all times herein mentioned, the said Eric Larson had been acting in a fiduciary capacity in the care of said property, and in the payment of taxes thereon.

"That after the death of said Anna Larson and before the expiration of the period of redemption above mentioned, the defendant Eric Larson, during the late summer or early fall of 1903, and while acting in his fiduciary capacity as aforesaid, paid to Caleb Winfrey, assignee of said tax certificate, the sum of $ 31.75 on behalf of himself as life tenant and on behalf of his children as remaindermen in full of all taxes, charges and costs against said property for which said property had been sold by the city in 1901, and that thereby said property was redeemed and restored to the owners thereof; that thereafter and to-wit, on November 27, 1903, a tax deed was executed and delivered by the city of Kansas City to Caleb Winfrey, by the terms of which said property was conveyed by the city of Kansas City; that said deed was filed for record in the office of the recorder of deeds of Jackson County, Missouri, on December 8, 1903, and recorded in Book B 802 at page 557 thereof; that afterwards on November 5, 1905, a deed of quit-claim was executed, acknowledged and delivered by Caleb Winfrey and wife to the defendant Eric Larson, whereby said Winfrey and wife remised, released and quit-claimed said property to the defendant Eric Larson; that afterwards, to wit, on June 4, 1914, said instrument was filed for record in the office of the recorder of deeds of Jackson County, Missouri, and recorded in Book B 1561 at page 132 thereof.

"That on or about August 26, 1911, defendant Eric Larson intermarried with the defendant Margaret Billow Larson, and they have ever since remained husband and wife.

"The court further finds the fact to be that ever since the death of said Anna Larson, defendant Eric Larson, as tenant for life, has remained in possession of the property hereinabove described, has paid the taxes thereon and has enjoyed the use and occupation of said premises as such life tenant.

"Wherefore, it is considered, adjudged and decreed by the court as follows:

"That said tax deed, dated November 27, 1903, and filed for record on said December 8, 1903, in Book B 802, page 557, and said quit-claim deed, dated November 5, 1905, and filed for record June 4, 1914, in Book B 1561, page 132, in the office of the Recorder of Deeds of Jackson County, Missouri, be and the same hereby are declared to be clouds on the title of plaintiffs to said property and that they be and they hereby are cancelled and held for naught and the cloud thereof removed.

"It is therefore further decreed by the court that the title to said property is in the plaintiffs and in the defendant Eric Larson, as follows:

"A life estate by virtue of his right of courtesy as the surviving husband of said Anna Larson is in the defendant Eric Larson; that the title in fee simple absolute to an undivided one-sixteenth of said property is in the defendant Eric Larson, by virtue of the Statutes of Descents and Distributions of this State, as the heir and father of the said Adga Larson, deceased, subject to said life estate in himself.

"That the rest, residue and remainder in said property, subject to the life estate in the above named defendant Eric Larson, is in the plaintiffs in fee simple as follows: In the plaintiff Sallie Larson Peterson, an undivided five-sixteenths; in the plaintiff Anna Larson, an undivided five-sixteenths; and in the plaintiff Lillie Larson, an undivided five-sixteenths, as heirs of their mother, Anna Larson, deceased."

Motions for new trial and in arrest of judgment were filed and overruled in due course. Defendants appeal.

Appellants seek a reversal of the judgment on two grounds: First, that it is not responsive to the issues made by the pleadings; second, that on account of a mistake made by defendants' principal witness in giving his testimony they were entitled to a new trial.

I. After adjudging that the tax deed and the quitclaim deed therein referred to are clouds on plaintiffs' title, the judgment proceeds as follows: "and that they be and they hereby are cancelled and held for naught and the cloud thereof removed." By the...