Russell v. Russell

• Decision Date: 24 August 1976
• Docket Number: No. 36185,36185
• Citation: 540 S.W.2d 626
• Parties: John G. RUSSELL and Vada S. Russell, Plaintiffs-Appellants, v. Francis H. RUSSELL and Hazel M. Russell, Defendants-Respondents. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 626

540 S.W.2d 626

John G. RUSSELL and Vada S. Russell, Plaintiffs-Appellants, v. Francis H. RUSSELL and Hazel M. Russell, Defendants-Respondents.

No. 36185.

Missouri Court of Appeals, St. Louis District, Division Two.

Aug. 24, 1976.

Gordon F. Webb, Edwin Patrick Harrison, Jr., Clayton, for plaintiffs-appellants.

Richard A. Hetlage, St. Louis, for defendants-respondents.

KELLY, Judge.

This is an appeal from a judgment of the Circuit Court of St. Louis County sustaining defendants-respondents' Motion for a Directed Verdict at the Close of All of the Evidence and entering judgment quieting title to a nine acre parcel of land located at 8985 Dunn Road in St. Louis County in defendants-respondents. For reasons hereinafter stated, we affirm the judgment of the trial court but remand it for further proceedings to resolve issues still retained for further disposition dependent upon the outcome of this appeal.

John G. Russell and Vada Russell, the plaintiffs-appellants, are husband and wife as are Francis H. Russell and Hazel Russell, the defendants-respondents. John and Francis are brothers. ¹

This cause of action was instituted by Jack and Sue Russell by the filing of a petition in the Circuit Court of St. Louis County, Missouri, seeking to have title to the tract of land in issue declared to be vested in them pursuant to the provisions of § 516.010 RSMo. 1969. Harold and Hazel filed an Amended Answer, on which the cause came on for trial, wherein they alleged that they had acquired title to the tract in dispute by general warranty deed of June 14, 1948, which was duly recorded in the records of the Recorder of Deeds of St. Louis County and that appellants' possession of said tract from its inception until October 18, 1972, had been with their permission. They denied that the appellants had any right or title to the tract of land and further alleged that the appellants were, after October 18, 1972, tenants at will. They prayed that the trial court decree that the appellants had no title in the property and that the property was vested in them.

Respondents also filed a Counterclaim which they later amended. This Amended Counterclaim was in two counts. Count I sought a decree that appellants had no title to the parcel in issue, that the fee simple title was vested in the respondents and that they were entitled to possession thereof. They further prayed for an order that the appellants vacate the property and surrender it to the respondents and that they be given an order enjoining the appellants from interfering with their efforts to sell the property or from reentering same. Count II of respondents' Counterclaim sought actual damages in the amount of $1,000.00 and $7,500.00 punitive damages by reason of the appellants' 'wilful and intended' refusal to deliver up possession of the premises.

Appellants filed a Reply to respondents' Answer, wherein they admitted that the respondents had acquired fee simple title to the real estate in issue by the deed dated June 14, 1948 and recorded in the office of the Recorder of Deeds of St. Louis County; the family relationships and that they were in possession; they denied the remaining allegations contained therein. As to Count I of respondents' Counterclaim, appellants after admitted the family relationships, denied that the respondents owned the property, admitted that they resided at 8985 Dunn Road, and denied the remainder of the respondents' allegations. With respect to Count II of the Counterclaim, appellants incorporated by reference the allegations contained in their Reply to Count I and denied the remainder of the allegations.

The cause was assigned to the Equity Division of the Circuit Court of St. Louis County whereupon the appellants filed a motion to remove the cause from the equity docket and assign it to a law division so they would be afforded a jury trial. This motion was sustained but was later reconsidered on motion of the respondents and reassigned to the Equity Division, 'with leave to frame issues of fact for jury determination in pre-trial proceedings.'

At a pre-trial conference the parties entered into a stipulation that there was no dispute as to the description of the property in issue; that the respondents were the grantees in a general warranty deed dated June 14, 1948, and recorded June 15, 1948 conveying to them the real estate in issue; that thereafter the respondents had not conveyed the property to any other person; that the appellants 'went into occupancy' of the house on the real estate in the fall of 1948 and remain there; and that the appellants did not pay any rent to the respondents during the occupancy.

When the cause came on for trial, a jury was selected and sworn. After Instruction MAI 2.01 was read to the jury, the jury was excused for the day. Thereafter the trial court made a record wherein it stated that it had determined that the case should be tried to an advisory jury whose findings would be treated as conclusive should it later be determined that the case was one at law, or as merely advisory if it was one in equity. It was agreed by counsel and the trial court that any equitable issues would be reserved for further action by the trial court.

The next morning, after the jury had returned, evidence was adduced by the parties. No evidence, however, was adduced by either party on the equitable issues framed by the pleadings. At the conclusion of appellants' case and again at the conclusion of all of the evidence the parties presented to the trial court motions for directed verdict, and these were overruled. After all of the evidence was concluded, in a conference out of the presence of the jury, the following took place.

'THE COURT: I want the record to show that after further conference with the attorneys we have agreed that we are taking the jury's verdict as a disposition of the legal issues, or issues under law in the case, as though this were a case tried at law. And we are reserving for further disposition and hearing, if necessary, any matters evoking the equitable jurisdiction of the Court as set out in the pleadings or if they are set out in the pleadings in the event that the jury returns a verdict for the defendant(s).

'Have I stated our position correctly, gentlemen?

'MR. HETLAGE: Yes.

'MR. HARRISON: Yes.'

The jury was instructed, argument had, and the cause submitted to the jury on the issue of adverse possession alleged in the appellants' petition. After almost eight hours of deliberation the jury announced that it was unable to agree upon a verdict. The trial court declared a mistrial and discharged the jury.

Thereafter the respondents filed a Motion to reconsider their Motion for Directed Verdict and Entry of Judgment at the Close of All of the Evidence and for Entry of Judgment. Appellants likewise filed a 'Memorandum' in opposition to respondents' Motion and prayed that the trial court set aside its order overruling their Motion for Directed Verdict at the Close of All of the Evidence and enter a Directed Verdict in Accordance Therewith or, in the alternative, to set the case for another trial by a jury as an action at law.

These motions were argued and submitted and after memoranda were filed by both parties, the trial court filed a memorandum and court order whereby it directed the respondents' attorney to prepare an appropriate judgment in accordance with the memorandum of the trial court settling all issues 'on the claims and counterclaims of both parties, including an alternative decree should this case be ruled to have been in equity instead of at law.'

Subsequently the trial court entered a decree overruling appellants' pending motions and sustained respondents' motion. The decree as entered adjudged that fee simple title to the land in controversy was vested in respondents and that the appellants have no right, claim, title or interest whatsoever in the real estate in issue. Alternatively, the trial court further decreed that if the cause be equitable in nature, that the respondents are vested with fee simple title to the real estate in issue and the appellants have no right, claim, title or interest whatsoever in the real estate in issue.

The appellants filed 'objections' to this decree together with a Motion to Set Aside the Judgment and For a New Trial. Both of these motions were denied. This appeal followed.

In this court, the appellants contend that the trial court erred (1) in failing to find and rule that they were entitled to a jury trial; (2) in entering judgment in the alternative because the trial court thereby failed to determine the applicable scope of review on appeal; and (3) in granting respondents' after-trial motion for directed verdict.

As we comprehend appellants' first two contentions, they rely upon the alternative decree entered by the trial court and the argument that by casting its decree in the alternative the trial court said: 'The case was tried to a jury, a mistrial was declared and 'I find that no submissible case was made and therefore judgment for the respondents. '' Thus, appellants' counsel argues, the trial judge never reached the question whether appellants were entitled to a jury trial. By this procedure the trial judge has denied appellants their right to a jury trial and has also failed to settle the scope of review on appeal.

From a reading of the record we believe it is clear that the trial judge was of the opinion that the adverse possession issue was one at law and for that reason prior to submission of the case to the jury he advised counsel for the parties that he was going to be bound by the facts found by the jury on that issue. Both counsel agreed to this. While no specific order was entered to the effect that a separate trial was to be had on the quiet title part of the case as authorized by Rule 66.02, it is clear from the record that this is what was done when it was agreed that any equitable issues in the case would be...