Sell v. Bretelle

• Decision Date: 07 May 1901
• Citation: Sell v. Bretelle, 162 Mo. 373, 62 S. W. 988 (Mo. 1901)
• Parties: SELL et al., Appellants, v. BRETELLE et al
• Court: Missouri Supreme Court

62 S.W. 988

162 Mo. 373

SELL et al., Appellants, v. BRETELLE et al

Supreme Court of Missouri, Second Division

May 7, 1901

Appeal from St. Louis City Circuit Court. -- Hon. Leroy B. Valliant Judge.

Affirmed.

Chas E. Pearce and Edw. C. Kehr for appellants.

(1) Plaintiffs established a complete and perfect title to the property sued for and are entitled to recover. (2) The evidence shows that defendants have no title to the property. Their deeds have been construed and the location of their property determined by an adjudication which is conclusive and binding on them. West v. Bretelle, 115 Mo. 653. (3) The facts given in evidence by defendants sustain neither of their defenses. Sell v. West, 125 Mo. 621; Blodgett v. Perry, 97 Mo. 264; Bompart v Roderman, 24 Mo. 385. (4) The court erred in admitting illegal evidence. Weil v. Posten, 77 Mo. 284; Ramsey v. Henderson, 91 Mo. 560. (5) There is no evidence to support the judgment, and the court below erred in overruling plaintiffs' motion for new trial. Whitmore v. Crawford, 106 Mo. 435; Wilson v. Albert, 89 Mo. 537; Moore v. Hutchinson, 69 Mo. 429; Land Co. v. Bretz, 125 Mo. 418; Williams v. Monroe, 125 Mo. 574. (6) The sole questions in the case are questions of law arising upon defendants' evidence and the admissions of the pleadings. The court below erred in the application of the law to the undisputed facts of the case. Blount v. Spratt, 113 Mo. 48; Freeman v. Moffitt, 119 Mo. 280; Hickman v. Green, 123 Mo. 195; Gambs' Admr. v. Ins. Co., 50 Mo. 44; Powell v. Railroad, 76 Mo. 80.

William B. Thompson, Ford W. Thompson and E. P. Johnson for respondents.

(1) The case of West v. Bretelle, 115 Mo. 653, l. c. 660, holds that the Sarpy lot, called for on the west in the sheriff's deed to Ruffner, was not only a monument but a controlling monument in the case, and for that reason rejects the call for fifty feet in the deed from Washington West to Virginia L. Ruffner's trustee, and substitutes fifty-two and one-half feet in place of it, the exact width that the evidence then showed Sarpy's lot to be. The deed of Sarpy to Thomas H. West was not in evidence in that case. With it in evidence, as it is in this case, Sarpy's lot is only fifty feet wide, and it remains not only a monument called for in the deed to Ruffner, but the controlling one in this case, and fixes Ruffner's boundary two and one-half feet further west, covering the land sued for, and making the call for fifty feet in the subsequent deeds correct. Whitehead v. Ragan, 106 Mo. 236. (2) The foregoing disposes of all claim of title in plaintiffs to the land sued for; but if it does not, the practical construction put on the deed to Ruffner by all of the parties interested, from the time he purchased in 1867 until a suit was brought in 1887, a period of twenty years, was that it conveyed the premises sued for, and this alone would settle any uncertainty in regard to the matter. Wolfe v. Dyer, 95 Mo. 545. (3) If Washington West held the property as trustee, whether the deed to him included the two and one-half feet or not, there was an amicable partition of the estate of Thomas H. West, including the premises sued for, which passed the title to them to Virginia L. Ruffner the grantor of defendant Bretelle. A parol partition followed by possession, severs the possession among the tenants in common, and passes the equitable title to the respective parties, and is a good defense to an action of ejectment. Nave v. Smith, 95 Mo. 596. The acceptance by a married woman of a deed intended as a partition deed, is binding on her, and valid as a partition. Goodrich v. Harrison, 130 Mo. 267. Not only will the acceptance of a partition deed bind a married woman but she may execute one without her husband. Sutton v. Porter, 119 Mo. 100. And a judgment in partition is binding on a married woman. Ketchum v. Christman, 128 Mo. 38. And a parol partition may be affirmed by a married woman. Sutton v. Porter, 119 Mo. 104; Smith v. Patterson, 95 Mo. 529. A partition of premises is binding on all of the parties to it, passes all of the title each party had in the premises at the time of the institution of the partition suit, or making the parol partition, and estops each from claiming any title in the premises partitioned, irrespective of whether they might have done so, or how the title stood, or who held the title, or whether they were married women, before the partition. Ketchum v. Christman, 128 Mo. 38; Sutton v. Porter, 119 Mo. 100; Case v. Mitzenberg, 109 Mo. 314; Hart v. Steedman, 98 Mo. 456; Forder v. Davis, 38 Mo. 113.

BURGESS, J. Sherwood, P. J., and Gantt, J., concur.

OPINION

BURGESS, J.

This is ejectment for the possession of an undivided third of two and one-half feet of ground fronting on the north side of Olive street in block No. 117, in the city of St. Louis.

The lot begins at a point fifty feet east of the intersection of the eastern edge of Sixth street with the northern edge of Olive street, thence east with Olive street two and one-half feet; thence northwardly, parallel to Sixth street, one hundred and fifteen feet. The petition was in the usual form, and the answer of Bretelle a general denial. After Bretelle filed his answer he sold out his interest to defendant Carpenter, who, on his own motion was made a party defendant, and filed a separate answer in which he denied generally all the allegations in plaintiff's petition, and then proceeded as follows:

"1. A parol partition on or about November 30, 1878, between the heirs at law of said Thomas H. West, with the allegation that under such partition, Virginia L. Ruffner was placed in possession of the property described in the petition, and the plaintiff, Martha E. Sell, received certain premises in Shaw Place; and that by reason of such partition, the plaintiff is forever estopped from claiming the premises described in the petition.

"2. That in March, 1888, plaintiffs brought a bill in equity against the said Washington West, Virginia L. Ruffner and others, for the recovery of a part of the fifty-two feet six inches, on Olive street, in the possession of said Washington West; that a final decree was rendered in said suit against the plaintiffs, which decree was subsequently affirmed by the Supreme Court of Missouri in the opinion in Sell v. West, reported in 125 Mo. 621, 28 S.W. 969, and that such decree is a bar to any action on the part of the plaintiffs herein.

"3. That defendant, and those under whom he claims, have been in adverse possession of the premises for more than ten years."

As constituting the parol partition, the answer alleges, that on or about the twenty-fourth day of January, 1873, the property described in plaintiff's petition was a part of a lot of ground owned by Thomas H. West, containing a front of fifty-two feet six inches on the north line of Olive street, with two three-story brick houses thereon; that he also owned six lots in Shaw Place and the improvements thereon; that "said Thomas H. West, from the year 1862, and down to the time of his death, collected the rents and profits of the said real estate, notwithstanding he was insolvent and the record title of said real estate was in the name of his son, Washington West, and his son-in-law, Lewis Ruffner, Jr., with the exception of two and one-half feet described in plaintiff's petition, which was intended to be placed in the name of his said son and son-in-law, but, which, by mistake, was left out in the deeds conveying the said property to his son-in-law, Lewis Ruffner, Jr., and his son, Washington West, and which two and one-half feet was covered by the west house of the two houses owned, erected, occupied, possessed and used by said Thomas H. West, during the time the said houses were in the name of said Lewis Ruffner, Jr., and the said Washington West."

The answer further alleged that said Thomas H. West had three children, his daughter, the plaintiff, Martha E. Sell, his daughter, Virginia L. Ruffner, and his son, Washington West; that after the death of said Thomas H. West, to-wit, on or about November 30, 1878, while the title to all of the property therein described was in the name of his son, Washington West, with the exception of the two and one-half feet described in plaintiff's petition, the widow of said Thomas H. West and his said three children agreed upon a partition and division of the real estate owned by the said Thomas H. West, and in pursuance of said agreements of partition, the said Virginia L. Ruffner was placed in possession of the lot on Olive street, commencing at a point fifty feet east of the east line of Sixth street, and thence running east along the north line of Olive street to a point in the center line of a private alley, between the two houses on the said fifty-two feet six inches of ground; that the said Washington West was placed in possession of the house on the eastern end of said ground, and that the plaintiff was placed in possession of the lots in Shaw Place, and by reason of accepting the deed of partition, so made under the said agreement, she is forever estopped from claiming any interest, right or title in said fifty-two feet six inches on the north side of Olive street, or in the said premises described in plaintiff's petition.

Plaintiffs by their reply, denied each and every allegation of new matter contained in the separate amended answer of the defendant Carpenter, except that they "admit that on or before January 24, 1873, Thomas H. West owned the ground described in plaintiffs' petition and also other ground adjoining the ground described in plaintiffs' petition. Plaintiffs admit that the said adjoining ground was occupied by two houses which were erected by said Thomas H. West, and that the said houses and the said...