Sicher v. Rambousek

• Decision Date: 31 January 1906
• Citation: 193 Mo. 113,91 S.W. 68
• Parties: SICHER et al. v. RAMBOUSEK.
• Court: Missouri Supreme Court

91 S.W. 68

193 Mo. 113

SICHER et al. v. RAMBOUSEK.

Supreme Court of Missouri, Division No. 2.

January 31, 1906.

1. APPEAL —RESERVATION OF GROUND OF REVIEW —DENIAL OF NEW TRIAL.

Unless an exception is taken and preserved by bill of exceptions to the action of the circuit court in denying a new trial, either in equity cases or actions at law, there is nothing before the Supreme Court for review except the record proper, and objections to the competency of evidence cannot be considered.

2. REFORMATION OF INSTRUMENTS—POWERS OF COURT.

Equity will reform a written instrument so as to make it speak the real agreement of the parties in case it fails by mistake or misprision of the scrivener so to do, and will exercise its power in that regard, not only as between the original parties, but as to those claiming under them in privity, such as personal representatives, heirs, assigns, grantees, judgment creditors, or purchasers with notice of the facts.

3. VENDOR AND PURCHASER — CONSTRUCTIVE NOTICE—FACTS PUTTING ON INQUIRY.

One who has notice of a fact which should have put him upon inquiry, and which he might have discovered by using due diligence, cannot claim as a purchaser without notice.

4. EQUITY—LAPSE OF TIME—LACHES.

Mere lapse of time does not act as a bar in a case of purely equitable jurisdiction, such as a suit to reform a deed.

5. APPEAL — REVIEW OF FACTS — WEIGHING EVIDENCE.

The Supreme Court will not inquire into the weight of the evidence.

Appeal from St. Louis Circuit Court; Franklin Ferris, Judge.

Action by William Sicher and another against Anna Rambousek. From a judgment for plaintiffs, defendant appeals. Affirmed.

John J. O'Connor, for appellant. M. Hartman and Walther & Muench, for respondents.

GANTT, J.

Plaintiffs in their amended petition allege: That on July 18, 1864, one Joseph Emanuel, Jacob Emanuel, and the plaintiff William Sicher, were the owners of three adjacent lots of ground, each having a front of 25 feet on the north line of Park avenue, in the city of St. Louis, by a depth of 108 feet to an east and west alley, said Joseph Emanuel being the owner of lot No. 28, Jacob Emanuel of lot No. 30, and plaintiff Sicher of the intervening lot, No. 29. That being desirous of creating certain easement appurtenant to said lots for the use and benefit of the said several owners, as well as the building then about to be erected upon said lots, the said three parties on July 18, 1864, entered into an agreement, which was reduced to writing and recorded in the recorder's office of the city of St. Louis. That by said agreement the said parties intended to covenant that the three houses about to be erected, one by each of said parties, should occupy the center 70 feet of said aggregate front of 75 feet, giving each owner one-third of 70 feet, and to forever leave vacant as a private passageway or alley the 2½ feet, respectively, at each end of said entire tract of 75 feet, for the use of all the owners of said three houses, their assigns, heirs, legal representatives, and tenants. That the agreement so entered into properly recites the agreement of said parties with reference to the erection of said three buildings upon the central 70 feet of said entire tract, awarded to each owner a frontage of 23 1/3 feet along the north line of Park avenue, and in and by said agreement the said parties did also mutually quitclaim to each other, but by inaccurate description, so much of the lot of each as might be occupied in part by the building of one of the others, respectively, as well as a proportionate interest in the private alleys sought to be created by this instrument, and by said writing the parties thereto did also covenant and agree that the well situated upon the rear of lot No. 29, owned by plaintiff Sicher, should be used by the owners of all said three houses and their tenants, in common, and that the said well, as well as said private alley, should be kept forever in good order and free from any nuisance, by all the parties using the same, and that all the parcels in which interests were by said instrument conveyed or created should be held to the several donees thereof, their heirs and assigns forever. That the parties to said agreement did thereupon proceed to execute the same and give full effect thereto by erecting three houses upon said 70 feet of ground in accordance with the true intent and meaning of said agreement, and by creating and leaving alleyways of 2½ feet each along the eastern and western sides of said entire tract of 75 feet. That by an error of the scrivener in drafting said agreement, and by mutual mistake and oversight of the parties thereto, the said alleyways were therein described as being "a space of two and one-half feet off the west line of lot 28, and also a like two and one-half feet of the east side of lot 30," contrary to the true intention of said parties, as the same was then and there conceived and executed by them, and the property quitclaimed was erroneously described, and the grantors, respectively, erroneously set out in said contract as follows: The plaintiff Sicher was therein recited as conveying to Joseph Emanuel "two-thirds of a foot off of the west side of lot number 29, * * * and on which Joseph Emanuel's wall stands," and as having conveyed to Jacob Emanuel "two-thirds of a foot of the east side of lot number 29." Said Jacob Emanuel was by said contract recited as quitclaiming to William Sicher and Joseph Emanuel "an undivided two-thirds of the two and one-half feet of ground off of the east side of lot number 30," and Joseph Emanuel was recited as quitclaiming unto Jacob Emanuel and William Sicher "an undivided two-thirds of said two and one-half feet of ground off of the west side of lot number 28," all contrary to the true intention of all said parties, as the same was then and there conceived and executed by them. That it was the intention of said parties to place said passageways along the west side of lot No. 30, and the east side of lot No. 28, and the same should have so described in said writing. That said Joseph Emanuel died testate, devising his property to the plaintiff Julia Emanuel, his widow. That plaintiff Willam Sicher has retained his ownership in said property ever since the date of said agreement. That lot No. 30, or so much thereof as is occupied by the building erected pursuant to said agreement, and subject to the existence of said easements under the terms of said contract, has, by mesne conveyances, vested in the defendant Anna Rambousek, who acquired the same by deed of Lowag dated December 22, 1898, with full notice and acceptance of said agreements and easements. That plaintiffs have heretofore and until the commission of the wrongs hereinafter complained of, as have, also, their agents and tenants, ever since the execution of said agreement, continually and fully used and enjoyed the said easement, consisting of two private alleys, and that, while the rear portion of the premises occupied by the said three several owners and their respective tenants were separated by fences, yet said rear yards were connected by gates, permitting free and uninterrupted use and access for going and coming by and through private alley, from and into the rear of each of said premises; it having been intended by said agreement and being necessary, especially for the use of the plaintiff Sicher and his tenants, to pass through the rear yard of the defendant by means of the gate between the property of plaintiff Sicher and defendant, and along said private alley and passageway. That notwithstanding the existence of said easements, and in violation of the same, as well as the agreement hereinbefore set out, the defendant, on July 1, 1901, did wrongfully and unlawfully barricade, bolt, and obstruct the gate leading from plaintiff Sicher's premises through the rear yard and into said passageway on the west of said 75 feet of ground, thereby preventing plaintiffs, their agents, tenants, and servants from passing through, or in any way using or enjoying the said easement. That although defendant has been frequently requested to remove said obstruction, and to permit the continued use of said passageway and gate, for the benefit of all said owners, the defendant has hitherto wrongfully refused so to remove the same, but continues to barricade and obstruct said gate and passageway. The prayer was for a reformation of the said writing so as to conform to the true intention of the parties, and an order compelling defendant to remove all obstructions placed by her upon or across said gate or passageway, and forever restraining her, her agents, and servants from erecting or maintaining any obstruction of any kind interfering with the free and unlimited enjoyment of all the rights and easements in and by said agreement created and for general relief.

The answer, after admitting defendant's ownership of lot No. 30, and denying generally every other allegation of plaintiff's petition, set up that the agreement referred to in the petition was not placed on record until October 27, 1884, and that at said time Jacob Emanuel, one of the parties to said agreement, was dead; that on October 6, 1884, plaintiff Sicher, David Emanuel, and Aaron Emanuel, all heirs of Jacob Emanuel, deceased, conveyed by warranty deed title to an undivided three-fifths of said lot 30 to Solomon Emanuel, who was at that time, as an heir of said Jacob Emanuel, the owner of an undivided one-fifth of said lot, and that by another deed of the same date said Solomon Emanuel acquired the remaining undivided one-fifth from his brother, Joseph Emanuel, thus becoming the owner of the whole of said lot, all of said deeds being placed on record; that by warranty deed dated September 1, 1888, said Solomon Emanuel conveyed all of said lot 30, free of said agreement referred to in the petition, to Isadore Simon; that at the time of purchasing said lot he had no knowledge of said...