Appeal from Circuit Court, Lawrence County; Carr McNatt, Judge.
Action by Paul B. Stellwagen against John H. Grissom and others. From the judgment, both parties appeal. Affirmed.
The first count of the plaintiff's petition is the usual petition in ejectment, and by it the plaintiff seeks to recover of the defendants a certain 40 acres of land in Lawrence county. The second count of the petition is
one to adjudge and determine title. By answer to the first count defendants admit that they were in possession and had been in possession for 18 years, and aver "that said possession was lawful possession." They also coupled therewith a general denial. The answer to the second count reads:
"Defendants for their answer to the second count of plaintiff's petition deny that the plaintiff had, or now has, any right, title, or interest in and to the real estate described in said petition; but defendants are informed, however, that plaintiff claims title to said land under and by virtue of certain mesne conveyances that had been executed by Peter Zinn on August 17, 1911, to one Elizabeth Zinn, which conveyance is recorded in Book 121, at page 109, of the deed record of Lawrence county, Mo., and by the said Elizabeth Zinn and Peter Zinn to the plaintiff, on the 1st day of December, 1911, which last-named conveyance is recorded in Book 121, at page 228.
"Defendants say that said pretended deeds are void and of no effect, and plaintiff is not entitled to any equitable relief by reason of said conveyances so executed as aforesaid; that, at the time that said pretended deeds were executed by the said Peter Zinn to Elizabeth Zinn and by the said Elizabeth Zinn and Peter Zinn to plaintiff, these defendants were, and had been for 12 years, in the peaceable possession of said land described in said petition, claiming title and ownership under a contract of conveyance, made, executed, and delivered by the said Peter Zinn on the 8th day of December, 1900, to these defendants, and that these defendants had been claiming ownership adverse to said Peter Zinn and to all the world; that they had been during these years paying taxes on all of said land; and that the defendants had made permanent and lasting improvements on the same to the value of $2,000 by clearing timber off of said land and putting same in a state of cultivation, erecting and building barns, dwelling houses and other out buildings, faithfully carrying out the terms and conditions of said contract of conveyance so executed and made as aforesaid to defendants by the said Peter Zinn. Said contract of conveyance is recorded in Book 118, at page 60, deed records of Lawrence county, Mo.
"Defendants further state that at the time the said pretended conveyances were executed by the said Peter Zinn and Elizabeth Zinn, his wife, to this plaintiff, the plaintiff well knew of the existence of said contract between said Peter Zinn and defendants, and well knew the terms and conditions upon which they were holding said land, and well knew of the execution of said contract to the defendants, and well knew of the fact of defendants improving said land as aforesaid, and paying taxes thereon as aforesaid at the time of the execution and delivery of the said conveyances to him by the said Peter Zinn and Elizabeth Zinn.
"Defendants further state that the said Peter Zinn and Elizabeth Zinn, his wife, as well as the plaintiff, in order to cheat and defraud these defendants of their rights to said land, by reason of the terms and conditions of said contract, wrongfully and fraudulently and without consideration caused said conveyance to be executed to plaintiff and have the same placed of record on the deed of records of Lawrence county, Mo.
"Defendants further state that the said Peter Zinn departed this life in Lawrence county, Mo., on the _____ day of April, 1912, and, by virtue of the terms and conditions of the said contract of conveyance executed as aforesaid to these defendants for said land, the lawful and peaceable possession by said defendants of said land for the space of more than 12 years, and paying all taxes on said land since 1900, and holding thereof adverse to plaintiff and the said Peter Zinn and to all the world of the peaceable possession as aforesaid, defendants claim title to said land described in said petition.
"Defendants further state that, by the terms of said contract of conveyance as aforesaid, they are entitled to a decree adjudging the title to defendants in fee simple to all of said land; that the plaintiff herein is not an innocent purchaser for value and without notice of the rights of the defendants, but was cognizant of all the facts as hereinbefore set forth and of the intentions of the said Peter Zinn to wrongfully and fraudulently deprive these defendants of their right to said land.
"Wherefore defendants pray the court that by its decree it adjudge the said pretended deeds above set forth and mentioned null and void, and that the same be set aside and for naught held, and that defendants be declared the owners in fee simple of said land; but, if the finding and decree of this court should be for the plaintiff, that defendants have judgment for said improvements placed on said lands and for moneys expended and paid by them for taxes thereon, and for all other equitable relief and judgments as the court may deem meet and just in the premises."
As the turning point in the case is dependent upon issues raised largely by this answer and the reply, we give the reply in full. "Comes now the plaintiff, and, for reply to
defendant's amended answer filed herein, denies each and every allegation of new matter in said answer contained.
"Plaintiff, further replying to amended answer, denies that defendants now hold or have ever held said land under a contract of convey. ance with Peter Zinn, but that on the 8th day of February, 1900, said defendants entered into a farm lease with the said Peter Zinn for the possession of all the land, described in plaintiff's petition, that he would clear and put into cultivation; that defendants took possession under said lease and now claim thereunder. That the said Peter Zinn died on the _____ day of April last, and said lease according to its terms thereby ceased to be of any effect whatever. Plaintiff further says that on the 16th day of January, 1909, the defendant John Grissom subleased the said lands to Thomas S. Todd, which said leasing was in violation of his lease from Zinn, and by the terms thereof said lease became null and void. That the said Grissom on the _____ day of _____, in violations of the terms of lease with Zinn, sold timber and telephone poles; which by the terms of his lease rendered it null and void."
In the record are the following stipulations as to certain facts:
"It is stipulated and agreed by and between the parties that on February 8, 1900, Peter Zinn and these defendants, John Grissom and Leah A. Grissom, his wife, executed the contract recorded in Book 118, at page 60, and it is also agreed that on the 16th day of January, 1909, Leah A. Grissom and John H. Grissom, the defendants, executed a lease to Thos. S. Todd, recorded in Book 101, at page 575. It is also agreed that the defendants are now in possession under the contract recorded in Book 118, at page 60, and have been in possession ever since under this contract and, have paid taxes on the land in controversy under this contract every year since 1900. It is also admitted that defendant Thos. S. Todd entered into possession under his contract and lease and is still in physical possession of a portion of said premises. It is admitted and agreed that the common source of title is in Peter Zinn, and that said Peter Zinn died on the 3d day of April, 1912, and that his estate is now in the course of administration in Lawrence county.
Mo. It is further agreed that the contract between Peter Zinn and the defendants Grissom was recorded in Book 118, at page 60, on the 5th day of November, 1911."
The contract upon which the defendants rely reads:
"Contract and agreement, by and between Peter Zinn of the first part and John H. Grissom and Leah Ann Grissom, his wife, parties of the second part, Peter Zinn, party of the first part, does agree that the said Grissom party of the second part may have and hold full possession of all lands that he clears and put it into cultivation on the northwest quarter of the southwest quarter of section 4, township 26, range 27 in Lawrence county, Missouri, known as the property of Peter Zinn, as consideration, parties of second part to pay taxes on said premises. I, the said Peter Zinn, hold and keep the right and privilege to go upon all the land that are not cleared to cut fire wood fence posts or building timber for my own use. The above agreement is such that it shall only be for the above-named family and no other relative to be taken in the building or on the said premises. It can't be leased or sold to other parties under this contract, as long as the said Peter Zinn lives, but after Peter Zinn's death, the land is willed to the above-named parties of the second part. If this contract is not complied with, then it shall be null and void.
"Peter Zinn. [Seal.]
his
"John H. X Grissom
mark
"Mrs. Leah Ann Grissom
"H. F. Kaiser, J. P
"At the request of Peter Zinn and he acknowledged the signature of this instrument of writing as his own and free will and act and deed.
"H. F. Kaiser, J, P
"Filed for record December 6, 1911, 10 o'clock and 30 min. a. m.
"E. A. Smith, Recorder."
Both parties have appealed, and both attack the judgment entered. The material parts of the judgment read:
"The court doth find that the plaintiff has a just and legal...
