Reisse v. Clarenbach

• Decision Date: 31 October 1875
• Citation: 61 Mo. 310
• Parties: CHARLES REISSE, et al., Defendants in Error, v. F. A. CLARENBACH, EXECUTOR OF AMELIA BERRI, DECEASED, Plaintiff in Error.
• Court: Missouri Supreme Court

61 Mo. 310

CHARLES REISSE, et al., Defendants in Error,

v.F. A. CLARENBACH, EXECUTOR OF AMELIA BERRI, DECEASED, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1875.

Error to Cole County Circuit Court.

Ewing & Smith, for Plaintiff in Error.

I. Instruction number six given for plaintiff, was erroneous. The answer set up an equitable defense based on fraud. And the instruction declared that, if defendant did not interpose this defense within ten years after the commission of the fraud, the defense would not avail. This instruction was wrong because, 1st, defendant was in possession and had been for fifteen years before the commencement of this action, and was not asking any affirmative relief, and hence, the statute does not apply. (Hunter vs. Hunter, 50 Mo., 445.) 2d, if the statute can be invoked, the instruction was wrong, for the statute could not begin to run till the discovery of the fraud. (Hunter vs. Hunter, supra; Thomas vs. Mathews, 51 Mo., 107.)

II. The statute, prescribing five years limitation to actions for relief on ground of fraud, etc., has no application to real actions. (Hunter vs. Hunter, 50 Mo., 445.)

Lay & Belch, for Defendants in Error.

I. Plaintiff's deed, at law, gives her the title, and unless this deed can be set aside for fraud, her title is complete. More than ten years have elapsed since this deed was filed for record, and its existence became known to the whole world. Those under whom defendants claim had their remedy in an action under the statute to quiet their title, or institute proceedings for removing a cloud on it, quia timet. (Sto. Eq. Jur., §§ 707, 825.) Hence, the alleged fraud cannot be set up. (Martin's Assignees vs. Smith, 1 Dillon, 85.)

II. Possession, as a rule, will be presumed to follow the legal title. But the defendant and the devisees under the will only claim an equitable title and admit the legal title to be in plaintiff. No presumption can therefore arise in this case of possession in defendant; and besides, the proof is positive and uncontradicted, that the actual possession is in the executor. Again, under the power given the executor to make sale and distribution of all the real estate, the legal right to the possession is in the executor at the present time even as against the devisees. (Tyler Eject., 178; Id., 60; Doe vs. McFarland, 9 Cr., 151; Kirk vs. Carter, 54 Pa., 285; Wallace vs. Wallace, 1 Am. Law Reg., 42.)

NAPTON, Judge, delivered the opinion of the court.

This is an action of ejectment to recover possession of certain lots in Jefferson City, and was commenced on the 9th of July, 1869. Both parties derive title from Henry Flachs--the plaintiffs as his heirs--the defendants as purchasers under an execution against him. There seems to be no dispute as to the facts. One of the plaintiffs, the wife of Reisse, is a daughter of Henry Flachs, and was born November 17, 1845. Her father was the owner of the lots in controversy, and in 1847, borrowed $100 from one Wagner, and to secure Wagner, made him an absolute deed to these lots, but with the understanding that upon his paying the $100, Wagner would re-convey. The money was re-paid in 1848 and Wagner did re-convey, but re-conveyed to Flachs' daughter, then two or three years old, and now the plaintiff in this case.

The title of the defendant was based on the invalidity of this conveyance of Wagner to the infant daughter of Flachs, because of Flachs' insolvency at that time. In 1846, one Weiss to the use of Bauer, recovered a judgment before Justice Kennedy against Flachs, and an execution issued and was returned nulla bona, and the transcript of this judgment was filed in the office of the clerk of the circuit court, certified by Justice Kennedy's successor, Fulkerson, and on the 2d August, 1850, an execution issued from the clerk's office of the circuit court, returnable to the August term, 1850, under which said lots were levied on and sold, and a deed made to said Weiss. Weiss conveyed to Bauer, who in 1855, conveyed to Berri, and Berri devised to his wife, who was the original defendant in this case. Clarenbach, the present defendant, was Mrs. Berri's executor, and entered an appearance and adopted her answer admitting himself to be in possession.

Berri took possession of these lots and inclosed them in 1856, and he and those claiming under him, have been in possession ever since.

The defendant set up the plea of the statute of limitations and then set up their title under the sheriff's deed, and claimed that the conveyance to the plaintiff, the infant child of Flachs, was void, because it was made to defraud Flachs' creditors. The plaintiffs insisted that this sheriff's deed was void because of various irregularities in the sale, and that the defendants could not go into the question of fraud, as more than ten years had elapsed since the fraud, if any, was perpetrated, and more than five years since its discovery; and evidence was produced on those points. The plaintiffs had a judgment.

Under the view we have taken of this case, it is deemed unnecessary to notice the details of the testimony offered to show the invalidity of the sheriff's deed in 1850, and of the proof to show a knowledge of all the facts supposed to constitute the fraud, for more than ten years before this suit was brought.

The only questions necessary to be determined, are:

First--Was the plaintiff barred? And, secondly--if the plaintiff is not barred, can the defendant depend on a junior deed, the validity of which depends altogether on establishing the prior deed to have...