St. Joseph Lead Co. v. Fuhrmeister, 38872.

• Decision Date: 05 September 1944
• Docket Number: No. 38872.,38872.
• Parties: ST. JOSEPH LEAD COMPANY, a Corporation, v. FRED W. FUHRMEISTER, Appellant.
• Court: Missouri Supreme Court

182 S.W.2d 273 ST. JOSEPH LEAD COMPANY, a Corporation,
v.
FRED W. FUHRMEISTER, Appellant. No. 38872. Supreme Court of Missouri. Division One, September 5, 1944.

[182 S.W.2d 274]

Appeal from Madison Circuit Court. — Hon. Norwin D. Houser, Judge.

AFFIRMED.

[182 S.W.2d 275]

Robert A. McIlrath and Bryan, Cave, McPheeters & McRoberts for appellant.

(1) As the petition sets forth the execution of the deed to Francis H. Fuhrmeister, pleads that that deed is null and void, alleges that the plaintiff is the rightful owner of the premises free and clear of any right of the plaintiff, and prays the court to decree the title to the premises in the plaintiff, it is a petition in equity. Wolfersberger v. Hoppenjon, 334 Mo. 817; Chilton v. Metcalf, 234 Mo. 27; Rains v. Moulder, 338 Mo. 275; Wetterau v. Farmers & Merchants Trust Co., 285 Mo. 555. (2) Title to the premises cannot be adjudged to be in the plaintiff, for the reason that in order to render such a decree the court would have to enforce a forfeiture and give aid in the divesting of an estate for an alleged breach of a covenant on a subsequent condition, and a court of equity never enforces a forfeiture or aids in divesting an estate for a breach of a covenant on a condition subsequent. Moberly v. City of Trenton, 181 Mo. 637. (3) And title to them cannot be adjudged to be in the plaintiff for the further reason that the petition discloses that plaintiff was not in possession of the premises at the time the petition was filed. Clark v. Covenant Mut. Life Ins. Co., 52 Mo. 272; Davis v. Sloan, 95 Mo. 552; Graves v. Ewart, 99 Mo. 1; Peters v. Berkemeier, 184 Mo. 393; Turner v. Hunter, 225 Mo. 71. (4) The package sales not for consumption on the premises were not a breach of the condition against the sales of intoxicating liquors on the premises. Robinson v. Cannon, 346 Mo. 1126; Hall v. Solomon, 61 Conn. 476; Holt & Co. v. Collyer, 44 L.T. 214. (5) The evidence shows that the National Lead Company interpreted the provision against the sales of intoxicating liquors as meaning that sales in packages under licenses and not to be drunk on the premises is not forbidden. Smith v. Vose & Sons Piano Co., 80 N.E. 527; O'Hear v. DeGorsbriand, 33 Vt. 593; Matthews v. Insurance Co., 91 N.W. 675. (6) The National Lead Company by promising Francis H. Fuhrmeister and his partner, Fred W. Fuhrmeister, that there would be no forfeiture for the sales of intoxicating liquor on the premises in packages and they having acted on and relied on the promises made is estopped to assert a forfeiture of the title to the premises. Perry v. Hall and Rice, 75 Mo. 503; School District v. Sheidley, 138 Mo. 672; 12 Amer. Jur., p. 605, sec. 112; 1 Williston, Contr. (Rev. Ed.), sec. 140; Beadles v. Smyser, 209 U.S. 393; Dickerson v. Colgrove, 100 U.S. 578; Allegheny College v. Natl. Chautauqua County Bank, 246 N.Y. 369, 159 N.E. 173, 57 A.L.R. 980; Porter v. Commissioner of Internal Revenue, 60 Fed. (2d) 673, affirmed in 288 U.S. 436, 77 L. Ed. 880, 53 S. Ct. 451; American Law Institute's Restatement of the Law of Contracts, sec. 90. (7) The plaintiff having only a quitclaim deed to the premises from the National Lead Company is not a bona fide purchaser of the property and is barred and estopped from asserting title to it. Oliver v. Piatt, 3 How. 333, 43 U.S. 479; May v. LeClaire, 11 Wall. 217, 78 U.S. 217; Thistle, Trustee, v. Buford, 50 Mo. 278; Schneider v. Schneider, 284 Mo. 314. (8) By its failure to enforce forfeiture of titles to lands conveyed by it when it knew the condition against sales of intoxicating liquors in conveyances made by it had been violated, the National Lead Company waived any right it may have ever had to assert a forfeiture to the title to the premises in suit. Sanitary Dist. of Chicago v. Chicago Title & Trust Co., 278 Ill. 529; Williams v. Santa Fe Ry. Co., 153 Mo. 487; Barrie v. Smith, 47 Mich. 130, 10 N.W. 168; Tower v. Compton Hill Improvement Co., 192 Mo. 379; Robinson v. Cannon, 346 Mo. 1126. (9) The right to assert a forfeiture, having once been waived, is forever waived and it cannot afterwards be claimed. Mitchell v. Kemp & Burpee Mfg. Co., 219 F. 843, 846; Williams v. Santa Fe Ry. Co., 153 Mo. 487; United States Fid. & Guar. Co. v. Miller, 234 Ky. 43, 34 S.W. (2d) 938. (10) The sale of all of its lands in St. Francois County, Missouri, without imposing any restrictions or conditions on the use of the land sold had the effect of extinguishing the condition against the sale of intoxicating liquors in the deed to Francis H. Fuhrmeister. Brown v. Wrightman, 5 Cal. App. 391, 90 F. 467; Hanna v. Rodeo-Vallejo Ferry Co., 89 Cal. App. 462; Jenks v. Pawloski, 98 Mich. 110; Duncan v. Central Pass. Ry. Co., 85 Ky. 525; Merrifield v. Cobleigh, 4 Cush. 178; Underhill v. Saratoga & W.R. Co., 20 Barb. 461. (11) The unanswered letter written by the defendant to the President of the National Lead Company was competent evidence of an admission by acquiescence in the statements contained in it. St. Louis Gunning Advertising Co. v. Wanamaker & Brown, 115 Mo. App. 270; Mercantile Trust Co. v. Paulding Stave Co., 210 S.W. 438; Porter v. Merrill, 138 Mo. 555; Downs v. Racine-Sattley Co., 175 Mo. App. 382; Crown Central Petroleum Corp. v. Bates, 37 F. (2d) 508. (12) If the title to the premises could be decreed to be in the plaintiff on the pleadings and the evidence, the defendant would be entitled to a decree for the value of the improvements placed on the premises by the Florence heirs. Secs. 1548, 1684, R.S. 1939; Gallenkamp v. Westmeyer, 116 Mo. App. 680. (13) The evidence shows that the value of the improvements was from $5,000 to $9,000. (14) The appraisement of the land in issue made by the appraisers in the administration proceedings in the estate of Francis H. Fuhrmeister, deceased, is not competent evidence of the value of the premises or the improvements thereon because the statute does not require such appraisers to be qualified as to the values of real property and there is no evidence in this record that they were experts on land values. Sec. 61, R.S. 1939.

W. Oliver Rasch, William R. Bascom and Nagel, Kirby, Orrick & Shepley for respondent.

(1) The language in the deed of January 31, 1938, from National Lead Company to predecessors in title of the defendant, prohibiting the use of the premises for the sale of intoxicating liquor, constitutes a condition subsequent as distinguished from a conditional limitation, covenant, easement or restriction. Koehler v. Rowland, 275 Mo. 573, 205 S.W. 217; 1 Restatement of the Law of Property, sec. 24, p. 59; 19 Amer. Jur., sec. 67, p. 530, sec. 68, p. 532. (2) Prohibition of the use of the premises for the sale of intoxicating liquor does not constitute a legal impediment to the enforcibility of the condition subsequent in the deed of January 31, 1938. Cowell v. Colorado Springs Co., 100 U.S. 547, 10 Otto, 55; Robinson v. Cannon, 346 Mo. 1126, 145 S.W. (2d) 146; Fete v. Foerstel, 159 Mo. App. 75, 139 S.W. 820. (3) The sale of intoxicating liquor in the original packages and not for consumption on the premises constituted an event prohibited by the condition subsequent in the deed of January 31, 1938. Hall v. Solomon, 61 Conn. 476, 23 Atl. 876; Sec. 2990, R.S. 1899; Koehler v. Rowland, supra; Sims v. Brown, 252 Mo. 58, 158 S.W. 624; Meissner v. Standard Ry. Equipment Co., 211 Mo. 112, 109 S.W. 730; Hickey v. Greengard, 176 S.W. (2d) 661. (4) Conveyance of the premises by the National Lead Company to the plaintiff by the deed of June 2, 1939, after breach of condition, service of notice of forfeiture and re-entry, does not constitute a legal impediment to the enforceability of the condition subsequent in the deed of January 31, 1938. Moore v. Wingate, 53 Mo. 398; Salamanca Trust Co. v. Crouse, 129 Misc. 609, 222 N.Y.S. 83; 1 Tiffany, The Law of Real Property (3 Ed.), sec. 209, p. 352; Catron v. Scarritt Collegiate Institute, 264 Mo. 713, 175 S.W. 571; Sec. 3401, R.S. 1939; Perry v. Smith, 231 S.W. 340; Bouvier v. Baltimore & N.Y. Ry. Co., 67 N.J.L. 281, 51 Atl. 781; Moore v. Sharpe, 91 Ark. 407, 121 S.W. 341; Stewart v. Blain, 159 S.W. 928; 14 C.J.S., Champerty and Maintenance, sec. 26, p. 368; Breeden v. Insurance Co., 220 Mo. 327, 119 S.W. 576. (5) Conveyance of the premises by the original grantees in the deed of January 31, 1938, through subsequent grantees to the defendant, does not constitute a legal impediment to the enforceability of the condition subsequent in that deed. Sec. 3427, R.S. 1939; 26 C.J.S., Deeds, sec. 150, p. 485; Odessa Improvements and Irrigating Co. v. Dawson, 24 S.W. 576; King v. St. Louis Union Trust Co., 226 Mo. 351, 126 S.W. 415; Koehler v. Rowland, supra. (6) The plaintiff has availed itself of the statutory remedy to ascertain and determine title and in so doing has proceeded at law. The lack of possession of the premises by the plaintiff does not constitute a legal impediment to determination of title and a right to possession in the plaintiff. Sec. 1684, R.S. 1939; Koehler v. Rowland, supra; Laws 1889, p. 180; Laws 1897, p. 74; Meriwether v. Love, 167 Mo. 514, 67 S.W. 250; Utter v. Sidman, 170 Mo. 284, 70 S.W. 702; Berkham v. Manewal, 195 Mo. 500, 94 S.W. 520; Laws 1909, p. 343; Canty v. Halpin, 294 Mo. 118, 242 S.W. 97; Rains v. Moulder, 338 Mo. 275, 90 S.W. (2d) 81. (7) Even though this proceeding is in equity, the forfeiture under the condition subsequent in the deed of January 31, 1938, should be upheld. Koehler v. Rowland, supra; Pomeroy's Equity Jurisprudence (5 Ed.), 460 (a), p. 320; Thompson on Real Property (Perm. Ed.), sec. 2150, p. 696; Granville v. Grand Rapids, H. & C. Co., 225 Mich. 587, 196 N.W. 351; Tennant v. Fretts, 67 W. Va. 569, 68 S.E. 387; Brooks v. Gaffin, 192 Mo. 228, 90 S.W. 808. (8) The record is barren of evidence supporting the contention of the defendant that the National Lead Company was estopped to enforce the condition subsequent in the deed of January 31, 1938...