Schiffman v. Schmidt

• Decision Date: 20 February 1900
• Citation: 55 S.W. 451,154 Mo. 204
• Parties: SCHIFFMAN, Appellant, v. SCHMIDT et al
• Court: Missouri Supreme Court

55 S.W. 451

154 Mo. 204

SCHIFFMAN, Appellant, v. SCHMIDT et al

Supreme Court of Missouri, First Division

February 20, 1900

Appeal from St. Louis City Circuit Court. -- Hon. Horatio D. Wood Judge.

Affirmed.

J. E J. F. & R. H. Merryman for appellant.

(1) The objections to the introduction of testimony because the petition does not state facts sufficient to constitute a cause of action, and stated facts showing affirmatively that plaintiff had no cause of action, admits all the facts stated in the petition, together with the deed of George Schiffman to Philip Schmidt, trustee for plaintiff, Charlotte Schiffman. Butler v. Lawson, 72 Mo. 227, 248; McKenzie v. Matthews, 59 Mo. 99; Dodson v Lomax, 113 Mo. 555; Verdin v. St. Louis, 131 Mo. 26; Plant Seed Co. v. Michel Plant & Seed Co., 23 Mo.App. 579. (2) The deed from George Schiffman to Philip Schmidt, trustee for Charlotte Schiffman, wife of George Schiffman, vested the entire fee simple title in the real estate in Charlotte Schiffman, as the trust was executed on the execution of the deed; and Philip Schmidt, the nominal trustee, had no interest in the property. He could neither sell, mortgage, lease, nor in any way control the property, except by authority in writing given him by Charlotte Schiffman. The deed construed by the court in the case of Cornwell v. Orton, 126 Mo. 355, and the deed in the case of Tremmel v. Kleiboldt, 75 Mo. 255, are identical with the deed in the case at bar, the only difference being the names and description of the land. Witham v. Brooner, 63 Ill. 344; Smith on Real and Personal Property, p. 135; 2 Wash. on Real Property (1 Ed.), p. 120; 4 Kent Com., p. 288; Webster v. Cooper, 14 How. 488; Lynch v. Swayn, 83 Ill. 337; Pugh v. Hays, 113 Mo. 431; Appleton v. Rowley, 8 Law Reg. Eq. Cases, 139; Mullany v. Malloy, 4 N.J.Eq. 16; Tiedeman on Real Prop., sec. 469.

E. P. Johnson for respondent.

(1) Notwithstanding the averment in the petition, that the judgment was void on which the execution issued, under which the property was sold for back taxes, and a deed made therefor to the purchaser, Mary Wing, July 21, 1882, the possession of the property taken under it, August 2, 1882, and continued for more than ten years before the institution of this suit, as alleged in the petition, started and kept the statute of limitations running, a void sheriff's deed being sufficient color of title. Baird v. St. Louis Hospital Association, 116 Mo. 419; Suddarth v. Robertson, 118 Mo. 286. And the same is true of a void tax deed. Cook v. Farrah, 105 Mo. 492. (2) The petition avers that appellant was a married woman at the time the deed to the premises was made to her trustee, and this plain and positive statement of fact can not be obviated by the other statement in it that the deed vested in her the fee simple title to said premises, and vested no title to the same, either in law or equity, in her trustee. The objections of respondents, like a demurrer, admitted the facts only, not the conclusions of law, inserted in the petition. Mosher v. Railroad, 127 U.S. 395. (3) A deed of land to a trustee of a married woman conveys the legal title to the trustee, and it remains in him until she becomes discovert. The statute of uses does not execute the use in such case while she remains under coverture. Walton v. Ketchum, 147 Mo. 218; Roberts v. Moseley, 51 Mo. 282; Tiedeman on Real Prop., sec. 469; Perry on Trusts (4 Ed.), sec. 310.

ROBINSON, J. Brace, C. J., Marshall and Valliant, JJ., concur.

OPINION

ROBINSON, J.

This is a proceeding in equity, begun in the circuit court of the city of St. Louis in March, 1895, to set aside certain judgments for taxes and sales thereunder, and to set aside a deed from defendant John W. Collins, the purchaser at such sale, to defendant John Oliver, and from defendant Oliver to defendant T. H. Peabody, and from defendant Peabody to defendant E. B. Cassell, and from the latter to defendant J. H. Kinsey, and for possession of the premises, and for one thousand dollars on account of rent received therefrom by defendant Kinsey. The amended petition, upon which this case was tried, states in substance, that on November 10, 1877, George Schiffman, the plaintiff's husband, conveyed the premises in question to one Philip Schmidt, as trustee, for the sole and separate use of his wife, the plaintiff, which deed was duly recorded, etc.; that at the time said deed was executed, the plaintiff was a married woman, and had been for more than twenty-five years prior to the death of her said husband, which occurred in September, 1893. The petition further avers that a suit for the delinquent taxes of 1879 was instituted against the plaintiff and her said trustee and her husband in September, 1881, which resulted in a judgment on the 8th of June, 1882, on which said judgment an execution was issued, and sheriff's sale had thereunder on July 21, 1882, and a sheriff's deed therefor was executed to the purchaser, Mary Wing, who, it is averred, was acting in behalf of defendant Hilton and his associates the other defendants herein; and that afterwards, on August 2, 1882, said Hilton took possession of the premises in question and in connection with his said associates and vendees, has ever since held the same, claiming title thereto.

The petition further avers that the judgment under which the property was sold was void for want of notice to the plaintiff and his trustee, which judgment, it is averred, was afterwards set aside, but it does not appear from any averment of the petition at whose instance, or when the same was set aside, nor is there any averment that either the sale or the sheriff's deed thereunder was set aside or in anywise affected thereby.

It is further averred that on November 2, 1883, another suit was commenced by the collector of revenue of the city of St. Louis, for the delinquent taxes of 1880 and 1881, against the plaintiff, her trustee and her husband, who, the petition avers, were served by publication, issued on a non est return, and judgment rendered therein on April 25, 1884, and the property in question sold on June following under execution issued on said judgment, at which sale defendant Collins became the purchaser and received a sheriff's deed therefor, and within one month thereafter conveyed the premises so acquired by him to defendant Oliver, who held the property for the benefit of defendant Hilton; and that said Oliver conveyed the same to defendant Peabody, who in turn conveyed it to defendant Cassell, who conveyed it to Kinsey, all of which conveyances, it is averred, were for the benefit of defendant Hilton. The petition also avers that the conveyance by Collins to Oliver was for the purpose of defrauding plaintiff out of her property, and that the order of publication above mentioned was wholly unauthorized; and that on June 2, 1885, a petition in the nature of a writ of error coram nobis was filed in the latter case by the defendants therein, and that on December 21, the petition was sustained by the circuit court, and the judgment set aside. There is no averment, however, that Oliver, who held the title acquired by Collins, was a party to this proceeding, nor is it alleged that the sheriff's sale and the deed executed thereunder were set aside or in any way affected thereby. The petition further shows that for some time prior to the institution of the second suit for back taxes, plaintiff was insane and wholly incapable of managing her business, and so remained until in December, 1894, but that she had fully recovered prior to the commencement of this suit. The petition also avers that the property in question was sold in a body for an inadequate price when it was susceptible of division, and that a sale of less quantity would have satisfied the judgment for taxes and costs.

The defendants Collins, Hilton and Kinsey answered, denying generally the allegations of the petition. On the trial in the court below, the plaintiff offered in evidence a deed from George Schiffman to Philip Schmidt, trustee for the plaintiff described in the petition. The deed, so far as material to the question raised by this appeal, is as follows:

"This deed made and entered into this tenth day of November eighteen hundred and seventy-seven, by and between George Schiffman, of the city of St. Louis in the State of Missouri, party of the first part, Philip Schmidt, of the same place, party of the second part, and Charlotte Schiffman, of the same place, party of the third part;

"Witnesseth: That the said party of the first part for and in consideration of one thousand three hundred dollars to him in hand paid, by the said party of the third part, the receipt thereof is also hereby acknowledged, and the further sum of one dollar to him in hand paid by the said party of the second part, the receipt of which is also hereby acknowledged, does by these presents grant, bargain and sell, convey and confirm unto the said party of the second part the following described tract or parcel of land, situated in the city of St. Louis, in the state of Missouri, to wit: [Here is described the property in controversy].

"To have and to hold the same, with all the rights, privileges and appurtenances thereto belonging, or in anywise appertaining, unto him, the said party of the second part his heirs and assigns, and his successors in this trust forever. In trust, however, to and for the separate use, benefit, enjoyment and behoof of the said Charlotte Schiffman, wife of George Schiffman, and her heirs and assigns, the said party of the second part hereby covenanting and agreeing that he will suffer and permit her, the said Charlotte Schiffman, without let or molestation, to have, hold,...