Rhodus v. Geatley

• Citation: 147 S.W.2d 631,347 Mo. 397
• Decision Date: 14 February 1941
• Docket Number: 37260
• Parties: Anton Rhodus, Victor Diestel, Bertha Mueller, Herman Rhodus, Annie Kary and Martha Smith, Appellants, v. M. P. Geatley, Trustee and Agent of the Bank of St. Clair, a defunct Corporation
• Court: Missouri Supreme Court

147 S.W.2d 631

347 Mo. 397

Anton Rhodus, Victor Diestel, Bertha Mueller, Herman Rhodus, Annie Kary and Martha Smith, Appellants, v. M. P. Geatley, Trustee and Agent of the Bank of St. Clair, a defunct Corporation

No. 37260

Supreme Court of Missouri

February 14, 1941

[Copyrighted Material Omitted]

Appeal from Franklin Circuit Court; Hon. R. A. Breuer Judge.

Reversed and remanded (with directions).

G. C. Beckham and Theo. P. Hukriede for appellants.

(1) Prior to 1921, the widower had a curtesy estate in his deceased wife's real estate. Laws, 1921, p. 119; Sec. 319, R. S. 1929. (2) The statute does not provide that the life tenant can maintain a partition suit against the remaindermen. Sec. 1545, R. S. 1929; Gray v. Clement, 296 Mo. 497. (3) Where the lands are burdened with a life estate, and some of the heirs are minors, there can be no partition until the life estate terminates or the minors become of legal age. For where the life estate exists, there can be no partition without the consent of all the parties, and minors cannot consent, nor can their guardians consent for them. Carson v. Hecke, 282 Mo. 580. (4) The only estates authorized by statute to be partitioned are estates which are coterminous and not successive. Cotenants of a life estate may have partition of their life estate which would not affect the remaindermen; or remaindermen who are tenants in common may have partition of the remainder, subject to the life estate. But there is no authority for a partition between the life tenant and remaindermen. Gray v. Clement, 286 Mo. 100. (5) Where the judgment in partition shows that the plaintiff had a life estate and the defendants a remainder, it showed on its face that the court did not have jurisdiction to render the particular judgment in that particular case, namely, a decree in partition, ordering the interests of both plaintiff and defendants to be sold and conveyed to the purchaser, and therefore said judgment is void. (6) Limitations do not run against remaindermen until they become entitled to possession by death of the life tenant. Souders v. Kitchens, 124 S.W.2d 1137; Herndon v. Yates, 194 S.W. 46. (7) Where the remaindermen were minors at the time the life tenant brought suit in partition against them, and therefore incapable of consenting to any phase of the action, and after the sale of the property under the void judgment, the remaindermen are not chargeable with laches for delaying suit to recover the property until death of the life tenant.

James Booth and James L. Anding for respondent.

(1) The appellants cannot urge on appeal errors not specifically called to the trial court's attention in the motion for new trial. Waters v. Gallemore, 41 S.W.2d 870; Belcher v. Hattix, 44 S.W.2d 177; Whitehead v. Liberty Natl. Bank, 56 S.W.2d 833; Hablutzel v. Home Life Ins. Co., 59 S.W.2d 639. (2) The general assignments of error contained in appellants' motion for new trial are wholly inadequate and insufficient as a basis for any assignment of error on appeal. R. S. 1929, sec. 1061; Raifeisen v. Young, 183 Mo.App. 508; Maplegreen Realty Co. v. Miss. Valley Trust Co., 237 Mo. 350; Bond v. Williams, 279 Mo. 215; Matthews v. Karnes, 9 S.W.2d 628; Natl. Bond & Inv. Co. v. Hodiamont Bank, 29 S.W.2d 205; DeMaria & Jannsen, Inc., v. Baum, 52 S.W.2d 418; Whitehead v. Liberty Natl. Bank of Kansas City, 56 S.W.2d 833; Tabler v. Perry, 85 S.W.2d 471; Marsters v. Bray, 85 S.W.2d 479; Clay v. Owen, 93 S.W.2d 914; Castornia v. Hermann, 104 S.W.2d 297; Bledsoe v. Midland Life Ins. Co., 106 S.W.2d 930; Fruit Supply Co. v. C., B. & Q. Ry. Co., 119 S.W.2d 1010. (3) The law has cast upon the appellants not respondent the onus of preparing a printed abstract of the entire record of the case and this the appellant has not done in this case. Redler v. Travelers Ins. Co., 117 S.W.2d 241; Colorado Milling & Elevator Co. v. Rolla Wholesale Gro. Co., 102 S.W.2d 681. (a) An abstract is insufficient where it omits exhibits offered and received in evidence. Colorado Milling & Elevator Co. v. Rolla Wholesale Gro. Co., 102 S.W.2d 682; State ex rel. Maplewood v. Southern Surety Co., 19 S.W.2d 691. (4) The judgment is presumed to be correct until the contrary is shown, and this presumption goes to the extent of assuming that evidence omitted from appellants' abstract is sufficient to supply the defect of which appellants complain. Euler v. State Highway Comm., 55 S.W.2d 719; Fronk v. Fronk, 159 Mo.App. 543. (5) Appellants, by accepting and retaining their respective shares of the partition sale, with knowledge of the facts, are estopped in equity from asserting any further interest in the lands. Boone v. Oetting, 114 S.W.2d 981; Virgin v. Kennedy, 32 S.W.2d 91; Bogart v. Bogart, 138 Mo. 419; Fischer v. Siekmann, 125 Mo. 72; Hector v. Mann, 225 Mo. 247; Lawson v. Cunningham, 275 Mo. 157; Milan Bank v. Richmond, 280 Mo. 40; Barron v. Store Co., 292 Mo. 216; Marsdon v. Nipp, 325 Mo. 834; McClanahan v. West, 100 Mo. 309; Jones v. Patterson, 307 Mo. 476; Proctor v. Nance, 220 Mo. 114; Clyburn v. McLaughlin, 17 S.W. 692; Austin v. Loring, 63 Mo. 19. (a) The appellants cannot have both the money and the land. Austin v. Loring, 63 Mo. 22; Highly v. Barron, 49 Mo. 103; Scott v. Royston, 223 Mo. 615; Hector v. Mann, 225 Mo. 247; Marsden v. Nipp, 325 Mo. 834; Berry v. Stigall, 253 Mo. 690; Shanklin v. Ward, 291 Mo. 18.

OPINION

Hays, J.

Appellants commenced this proceeding by filing in the circuit court a petition in two counts. Count one, upon which the case was tried, alleges that the plaintiffs (appellants in this court) are owners of a vested remainder in fee in certain lands situated in Franklin County and that the defendant is tenant thereof per autre vie; that the defendant claims the entire fee under certain recorded conveyances to be hereafter described. Said count then prays for judgment determining the title to be as aforesaid. The second count of the petition, which is also based upon the theory that the defendant is tenant per autre vie and that the plaintiffs are owners of the vested remainder, seeks damages for alleged waste.

Defendant's answer sets up a claim as fee simple owner in trust for the stockholders of a certain defunct bank. It also pleads certain conveyances under which this absolute ownership is asserted. It then proceeds to set up facts which defendant claims give rise to an equitable estoppel against the plaintiffs and pleads certain former judicial proceedings as the basis of res judicata. The case was tried under the first count only, to the court without a jury, and no evidence was offered by either party on the second count. Appellants have, in their brief filed with us, asked for judgment only on the first count and that count alone is before us for consideration. After such trial the court entered a general judgment for the defendant.

We shall presently state the facts giving rise to this controversy as the same are disclosed by the record, but we must first dispose of two preliminary questions.

First, respondent contends that appellants' abstract of the record is defective, because it fails to set out the contents of two exhibits offered and received in evidence in the trial below. While respondent has not filed a motion to dismiss nor a counter abstract, simply relying upon a statement of this supposed defect in his brief, we will pause to say that the abstract is, in our opinion, sufficient. It shows -- and in the absence of a counter abstract we take the statements contained therein as being true -- that the two exhibits mentioned were not included in the bill of exceptions when approved by counsel, signed by the trial judge and filed by the clerk. All matters not appearing upon the judgment roll itself or in the formal written pleadings in the case are made part of the record on appeal only by their inclusion in the bill of exceptions, and the proper settling of this bill lies within the province of the trial court. It is the duty and right of an appellant to abstract only matters which appear of record below, and this includes the judgment roll, the formal pleadings, the verdict of the jury, if any, and those proceedings which are shown in the bill of exceptions as it was settled by the trial court, and nothing more. The present abstract is, therefore, not subject to attack on the ground mentioned in respondent's brief.

Second, respondent contends that the assignments of error set out in the appellants' motion for new trial are wholly inadequate and insufficient to form the basis of any assignments in this court. The motion contains six assignments of error which may be summarized as follows: That the judgment below was for the wrong party, was contrary to the evidence and to the law and against the equities of the case, and that under the pleadings and the evidence the court should have found for the plaintiffs and not for the defendant. The question of so-called general assignments of error in a motion for new trial has received considerable attention in our decisions. Many of the cases are cited and commented upon in Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297. It is true that under the statute, Sec. 1061, R. S. Mo. 1929, we are forbidden to consider on appeal any assignments of error "except such as shall have been expressly decided by such (lower) court," and that we have consistently held, particularly in actions at law, that a mere general statement in a motion for a new trial of the grounds on which it is sought is not sufficient; but the problem here presented is whether or not, in the circumstances of this particular case, the assignments of this motion could have been made any more specific than they were. The answer to that question will turn upon the nature of the...