Propst v. Sheppard

• Decision Date: 05 October 1943
• Docket Number: No. 26320.,26320.
• Citation: 174 S.W.2d 359
• Parties: PROPST et al. v. SHEPPARD et al.
• Court: Missouri Court of Appeals

174 S.W.2d 359

PROPST et al. v. SHEPPARD et al.

No. 26320.

St. Louis Court of Appeals. Missouri.

October 5, 1943.

Appeal from Cape Girardeau Court of Common Pleas; J. Henry Caruthers, Judge.

"Not to be reported in State Reports."

Action by Mayme Propst and another against Emma Howard Sheppard and others for money had and received. From a judgment for plaintiffs, defendants appeal.

Affirmed.

A. M. Spradling, of Cape Girardeau, for appellants.

John L. Keusenkothen, of Cape Girardeau, for respondents.

McCULLEN, Judge.

This action, for money had and received, was brought by respondents, as plaintiffs, against appellants, hereinafter referred to as defendants, to recover the sum of $450 alleged to have been paid by plaintiffs to defendants for 18 acres of land which were later taken away from plaintiffs by a decree of court. The cause was tried before the court without a jury and resulted in a finding and judgment in favor of plaintiffs and against defendants Emma Howard Sheppard and Albert Sheppard, Mabel Howard Gladish, Anna Howard Rider, Ida Howard Hope, William Hope, and Ezra Howard in the sum of $448. Defendants duly appealed.

In their petition plaintiffs alleged, in substance, that in consideration of the payment by them of $312.50 to each of the following defendants, namely, Emma Howard Sheppard, Mabel Howard Gladish, Anna Howard Rider, Ida Howard Hope and Ezra Howard, making a total sum of $1,562.50, said defendants did convey, "grant, bargain and sell" to plaintiffs 75 acres of land in the county of Cape Girardeau, Missouri (describing the land), and by their deed defendants covenanted that they were lawfully seized of an indefeasible estate in fee in the premises conveyed, and that the same were free and clear of encumbrances and that they would warrant and defend the title to said premises and to plaintiffs and their heirs and assigns against the lawful claims and demands of all persons; that there was a breach of defendants' covenant of seisin in that at the time of said conveyance defendants were seized of only 57 acres of land described in the deed as consisting of 75 acres; that the acreage that defendants were seized of has been finally determined by a decree of the Circuit Court of Cape Girardeau County rendered January 30, 1936, and that by reason of said decree plaintiffs over-paid the five last above-named defendants for 18 acres of land at the price of $25 per acre, in the sum of $75 to each of said defendants, or a total sum of $450 for land which the said defendants were not seized of and could not convey.

Plaintiffs alleged, in three additional counts of their petition, other damages, but since they are not complaining of the court's action in disallowing said damages it is unnecessary to notice said counts further herein.

The answer of defendants consisted of a general denial, a plea of res adjudicata, and a plea of the five year statute of limitations. There was also a plea in the answer that plaintiffs were estopped from making any claim because of their own conduct and representations, but that defense was abandoned by defendants at the trial.

It appears from the evidence that Stephen G. Howard at the time of his death was the owner of all the real estate mentioned in the controversy herein and left surviving him as his sole and only heirs at law Emma Howard Sheppard, Mabel Howard Gladish, Ida Howard Hope, Ezra Howard, William Howard, and Mayme Propst. On May 14, 1929, said heirs of Stephen G. Howard agreed to a settlement and division of their father's estate, sometimes referred to as the Howard farm, thereby dispensing with the necessity of an administration. By said agreement Mayme Propst and her husband S. C. Propst, plaintiffs in the suit at bar, agreed to purchase 75 acres off the west side of the Howard farm at the price of $25 per acre, and William B. Howard, the youngest son, now deceased, and Anna F. Howard, his wife, who later became Anna Howard Rider, agreed to purchase 111.55 acres, the remaining part of the farm, off the east side of said tract, at a price of $35 per acre. Before the deeds making such conveyances were drawn a survey was made, first of the 75 acres and then of the remaining part of the farm. On said May 14, 1929, Emma Sheppard and Albert Sheppard, her husband, Ida Howard Hope and William Hope, her husband, Ezra Howard and Mattie Howard, his wife, S. C. Propst and Mayme Propst, his wife, and Mabel Howard conveyed to William B. Howard and Anna F. Howard, his wife, 111.55 acres off the east side of the farm. The deed, after describing the real estate, contained the following: "Being all our right, title and interest in and to the above described real estate as heirs of S. G. Howard, deceased." Said deed was duly filed for record.

On the same day, namely, May 14, 1929, William B. Howard and Anna F. Howard, his wife, Albert Sheppard and Emma Sheppard, his wife, William Hope and Ida Howard Hope, his wife, Ezra Howard and Mattie Howard, his wife, and Mabel Howard conveyed to Mayme Propst and S. C. Propst, her husband (plaintiffs herein), 75 acres off the west side of said real estate. That deed also was duly filed for record and contained the following: "Being all our right, title, and interest in and to the above described real estate, as heirs of S. G. Howard, deceased."

After the above-mentioned disposition of the real estate plaintiffs went into possession of the entire farm as owners of the 75 acres, and as tenants of the 111.55 acres which had been conveyed to William B. Howard and Anna F. Howard, his wife.

Plaintiffs' testimony showed that they farmed the entire tract of land and were in possession of it and continued to farm it from May 14, 1929, until late in the year 1935.

William B. Howard, a World War veteran, died in the Veterans' Hospital, leaving surviving him Anna F. Howard, his wife, and one child. Said William B. Howard and Anna F. Howard, his wife, had taken title to the 111.55 acres as tenants by the entirety, and on the death of William B. Howard the title vested in Anna F. Howard, his wife. Thereafter, Anna F. Howard intermarried with one Carl Rider. She will be referred to hereafter as Anna F. Rider. After the death of William B. Howard and the marriage of his widow, Anna F. Howard, to Rider, a dispute arose between plaintiffs and Anna F. Rider and, on December 4, 1935, the last-named instituted a suit to quiet title and in ejectment against plaintiffs with respect to the ownership of a strip of land consisting of 18 acres of the land involved in the transfers above mentioned.

Plaintiffs herein, as defendants in said suit, claimed that said 18 acre strip of land belonged to them, while Anna F. Rider contended that she was the owner thereof. The style of said suit was, Anna F. Rider, plaintiff, v. Mayme Howard Propst and S. C. Propst, defendants, and it was filed in the Circuit Court of Cape Girardeau County. The petition, answer, and replication in said suit put in issue the ownership of the 18 acres of land in dispute between the said parties. The cause was tried and the court rendered a finding and judgment that the defendants in that suit (who are the plaintiffs in this suit) were not the owners of the real estate in dispute and that they had no right, title or interest to the same and ordered them ejected. An appeal was taken to the Supreme Court by the defendants in said suit but was not perfected, and the judgment and decree of said Circuit Court became final and binding on the parties thereto.

The first contention of defendants herein is that the present action involves the same issues tried in the suit to quiet title brought by Anna F. Rider against these plaintiffs as defendants, and that the issues in this case were formerly adjudicated and determined adversely to the plaintiffs; and that the whole controversy having been adjudicated in said suit, plaintiffs herein are estopped from proceeding in this action. It is contended by defendants that in the former suit the court determined that these plaintiffs did not own the property involved therein, and they argue that plaintiffs "cannot recover for property which the court decided they did not own." The fundamental error in defendants' argument is shown in the language just quoted. The conclusive answer to such argument is that plaintiffs are not seeking in this suit to recover for the 18 acres of land taken from them. They are merely asking that the money they paid to defendants for said 18 acres be returned to them because, as it turned out, defendants parted with nothing as a consideration for said money. Defendants cite a large number of cases in support of said contention, and also cite cases holding that a plea of former adjudication or res adjudicata applies to suits to quiet title.

We think it is unnecessary to discuss the cases cited by defendants on the points mentioned for it may be conceded that the principles referred to by them do apply to the facts in said cases, but we think it is clear that they have no application to the facts in the case at bar.

The judgment in the suit to quiet title awarded to the plaintiff therein ownership of the 18 acres of land which were described in her petition in said suit. Both deeds executed by the Howard heirs, one to plaintiffs herein and the other to William B. Howard and Anna, his then wife, described the land in metes and bounds.

The evidence on behalf of plaintiffs in the case at bar showed that the 18 acres of land...