Real Est. Inv. Co. v. Winn

• Decision Date: 02 May 1938
• Docket Number: No. 19088.,19088.
• Citation: 116 S.W.2d 550
• Parties: REAL ESTATE INVESTMENT COMPANY, APPELLANT, v. FRANK D. WINN AND MARY WINN, RESPONDENTS.
• Court: Missouri Court of Appeals

116 S.W.2d 550

REAL ESTATE INVESTMENT COMPANY, APPELLANT, v. FRANK D. WINN AND MARY WINN, RESPONDENTS.

No. 19088.

Kansas City Court of Appeals. Missouri.

May 2, 1938.

Appeal from Clay Circuit Court. — Hon. James S. Rooney, Judge.

AFFIRMED.

Harding, Murphy & Tucker and Alan F. Whettitt for appellant.

Lawson & Hale for respondents.

REYNOLDS, J.

This appeal comes to us from the Circuit Court of Clay County.

The plaintiff, Real Estate Investment Company, filed its amended petition in the Circuit Court of Clay County at Liberty, on March 17, 1937, in a cause presumably pending in that court, instituted previously thereto upon an original petition filed therein. The record fails to show any filing of the original petition or the date thereof.

The amended petition is as follows:

"Plaintiff for its cause of action states that it is a corporation duty organized and existing under the laws of the State of Missouri, and for its cause of action against the defendants states that it is the owner of certain personal property in Clay County, Missouri, located on land known as an amusement park and pleasure resort and named Winnwood Beach in Section 6 in Township 50 of Range 32, which personal property is described as follows, to-wit:

"An amusement device known as Mill Chutes or Chute Ride and all machinery and improvements connected therewith; also a certain building known as the Fun House, Honeymoon Trail and Santa Claus Ride, being a frame building and machinery and equipment attached thereto, all of said personal property being now located on real estate owned or claimed to be owned by the defendants herein.

"Plaintiff further states that the defendants are about to tear down, destroy, injure and carry away the personal property hereinabove described without any authority of law and that the damage and injuries to plaintiff will be irreparable and that plaintiff does not have any adequate remedy at law for the injury which plaintiff will sustain thereby

"Plaintiff further alleges that it has demanded possession of said buildings and assets aforesaid and has attempted to remove the same but defendants refused the demand and wrongfully prevented plaintiff from removing and taking physical possession of said buildings and assets. That defendants have removed a portion of said buildings and assets and wrongfully disposed of the same and have refused and failed to account to plaintiffs therefor.

"Wherefore, plaintiff prays that defendant be ordered to surrender possession of said property of plaintiffs as aforesaid and that plaintiff have judgment against defendants for the reasonable value of such assets as the court finds has been removed and disposed of by defendants and, that a writ of injunction issued from this court, enjoining and restraining the said defendants, their agents, servants and employees from tearing down, destroying and carrying away said personal property, and from interfering in any manner with the possession or title of the plaintiff in and to said personal property and for such other and further relief as to the court shall seem meet and just, and that a temporary injunction be granted to this plaintiff at this time."

The amended petition being duly verified, a temporary injunction as asked therein was ordered, enjoining the defendants, their servants, and agents from tearing down, destroying, and carrying away certain personal property described as follows, to-wit: "An amusement device known as Mill Chutes or Chute Ride and all machinery and improvements connected therewith; also a certain building known as the Fun House, Honeymoon Trail and Santa Claus Ride, being a frame building and machinery and equipment attached thereto," until the further order of the court, upon the plaintiff filing with the clerk a bond in the sum of $400 as required by law.

It appears from the record that such bond was on March 18, given by the plaintiff, with the Central Surety and Insurance Corporation as surety thereon and filed on said date in said cause in said court.

The defendants, Frank D. Winn and Mary Winn, filed separate answers, each being a general denial.

Upon the filing of such answers, the plaintiff asked and obtained leave of the court to amend its petition by interlineation at the bottom of the first page and the top of the second page thereof, as follows: "Plaintiff further alleges that it has demanded possession of said buildings and assets aforesaid and has attempted to remove the same but defendants refused the demand and wrongfully prevented plaintiff from removing and taking physical possession of said buildings and assets. That defendants have removed a portion of said buildings and assets and wrongfully disposed of the same and have refused and failed to account to plaintiff therefor. That defendants be ordered to surrender possession of said property of plaintiff's as aforesaid and that plaintiff have judgment against defendants for the reasonable value of such assets as the court finds have been removed and disposed of by defendants and."

The cause was tried in said court before the Honorable James S. Rooney, the judge thereof, on March 31, 1937, at the March term, 1937, of the court and was submitted to the court upon the pleadings and proof adduced and taken under advisement by the court.

Thereafter, on April 9, 1937 at the March term, 1937, of the court, the court found that there was no equity in the plaintiff's petition and denied the prayer thereof.

Thereupon, the defendants by leave of court filed a motion for the assessment of damages, which was sustained; and damages in favor of the defendants were assessed upon the plaintiff's bond in the sum of $250. Judgment was thereupon ordered and entered that the temporary injunction granted in the cause be dissolved; that the plaintiff's amended petition be dismissed; that the defendants recover of the plaintiff and its surety on the injunction bond the damages assessed by the court, together with their costs; and that they have execution therefor.

Following an unsuccessful motion for a new trial, the plaintiff prosecutes this appeal.

The property involved in this suit appears to have been situated upon certain real estate forming a part of the former Winnwood Beach or Amusement Park in Clay county, originally belonging to Frank D. Winn, one of the defendants herein, and his wife, Geraldine C. Winn. September 10, 1912, they conveyed title by warranty deed to the Winnwood Development Company, a corporation, which latter company leased the premises on which the concessions in question were built to the Winnwood Amusement Company, a corporation.

Thereafter, on November 15, 1927, the Winnwood Development Company executed a deed of trust upon a large block of real estate belonging to it, including the real estate upon which the property in question is situated, to Hal R. Lebrecht, trustee for Edward Aaron, which was duly recorded in Clay county. Thereafter, on March 22, 1928, the Winnwood Amusement Company, the lessee of the Winnwood Development Company above mentioned, sublet part of the premises held by it under its lease to the Winnwood Fun House Company for the construction thereon and for the maintenance and operation of devices known as the "Fun House," "Honeymoon Trail," and "Santa Claus Ride," which sublease was in writing and was acknowledged and recorded in the office of the recorder of deeds of Clay county.

At about the same time, the Winnwood Amusement Company executed another sublease of a certain portion of the premises held by it under its lease from the Winnwood Development Company to Dorothy L. Arndt and the Wind Chutes Corporation for the construction by the sublessees of an amusement device or concession on said premises to be known as "Mill Chutes."

Thereafter, on December 1, 1928, Winnwood Fun House executed a deed of trust conveying its leasehold estate in the premises subleased to it to R.C. Tucker, trustee for the A.O. Thompson Lumber Company, including all buildings, improvements, fixtures, appliances, devices and all personal property of every kind and character which were located on said premises at the time or which might thereafter be placed on said premises and used in connection with the operation of its concessions or devices known as "Fun House." "Honeymoon Trail." and "Santa Claus Ride." It was provided in said deed of trust that all of said buildings and appliances included thereon were to be treated as personal property and that the deed of trust executed should at the option of the holder of the indebtedness thereby, be treated as a chattel mortgage or as a real estate deed of trust.

On January 9, 1930. Dorothy L. Arndt and the Wind Chutes Corporation executed and delivered a trust agreement to Albert Tamm as trustee for designated third parties to secure certain indebtedness to such third parties, covering their leasehold estate in the premises held by them as sublessees and the concessions and amusement devices constructed on such premises by them and all other improvements upon or thereafter erected upon said leased property with power of sale in said trustee in event of default in the payment of the various indebtednesses secured thereby.

Thereafter, all of the deeds of trust above referred to including the deed of trust from the Winnwood Development Company to Hal R. Lebrecht, trustee, were foreclosed: and the property conveyed by each was sold: and deeds were delivered to the respective purchasers thereof by the trustee in each of said deeds of trust. The deed of trust from the Winnwood Development Company to Lebrecht, trustee, was foreclosed December 3, 1935; and the property described therein was sold and purchased by one A.L. Taylor, to whom it was conveyed by trustee's deed and from whom the title thereto passed by mesne conveyance to the defendant Mary Winn on June 1, 1936. The deed of trust to Lebrecht, trustee, included in the property conveyed all buildings and...