Stierlin v. Teschemacher

• Decision Date: 28 October 1933
• Docket Number: No. 30826.,30826.
• Citation: 64 S.W.2d 647
• Parties: MRS. R.A. STIERLIN, MRS. WILLIAM R. HOLDEN, HERBERT C. STRAUBE and MRS. JOHN BOLEN v. JULIUS G. TESCHEMACHER ET AL., C.F. BEEHLER and JULIUS G. TESCHEMACHER, Appellants.
• Court: Missouri Supreme Court

64 S.W.2d 647

MRS. R.A. STIERLIN, MRS. WILLIAM R. HOLDEN, HERBERT C. STRAUBE and MRS. JOHN BOLEN v. JULIUS G. TESCHEMACHER ET AL., C.F. BEEHLER and JULIUS G. TESCHEMACHER, Appellants.

No. 30826.

Supreme Court of Missouri, Division 2.

October 28, 1933.^*

Appeal from Circuit Court of St. Louis County. — Hon. Amandus Brackman, Judge.

AFFIRMED IN PART AND REVERSED IN PART AND REMANDED.

Wurdeman, Stevens & Hoester for appellants.

(1) The rule that he who comes into a court of equity must come with clean hands is a cardinal one; its application depends not upon the averments of the pleadings, but it may be invoked and applied by the court sua sponte. Respondents, with the exception of respondent Mosberger, claimed by their pleadings and proof an interest in said real estate which, their pleadings admit, was transferred by their ancestor for the purpose of defrauding and cheating his wife of her marital interest in his real estate. Obviously, they occupy no better position in a court of equity than would the decedent, William A. Mosberger, had he attempted to set aside this conveyance. Under these circumstances equity will decline to grant the relief prayed for, but will leave the parties where it finds them. Stillwell v. Bell, 248 Mo. 61; Creamer v. Bivert, 214 Mo. 473; Gilmore v. Thomas, 252 Mo. 155; Derry v. Fielder, 216 Mo. 176; Robertson v. Sayre, 134 N.Y. 97, 7 A.L.R. 151; Reynolds v. Bolen, 202 Pa. 642, re-reported 4 A.L.R. 100. (2) Equity aids the vigilant; not those who sleep upon their rights. Bennett v. Terry, Public Admr. of St. Louis County, etc., 299 S.W. 147; Dent v. Long, 90 Ala. 172; James v. Hill, 140 Ga. 739; Vermilion, etc., v. Varner, 192 Ill. 594. (3) The trust sought to be established by appellants was an express trust, therefore void and of no force and effect, it being parol. R.S. 1929, sec. 3104; Ebert v. Myers, 9 S.W. (2d) 1066; Heil v. Heil, 184 Mo. 665; Bender v. Bender, 281 Mo. 478; McFarland v. Bishop, 282 Mo. 534; Gates Hotel Co. v. Federal Inv. Co., 331 Mo. 107. (4) In an action in the nature of a suit in chancery to divest defendant of his title to certain land the evidence, in order to warrant the decree in favor of plaintiff, must be so clear, definite and positive as to leave no reasonable ground for hesitancy or doubt in the mind of the chancellor. The court, therefore, erred in failing to affirmatively find that the respondents' bill stated no equity and in failing to further find affirmatively that the appellant Beehler held a valid, bona fide, existing encumbrance against the premises, made in good faith. Forester v. Scoville, 51 Mo. 268; Bailey v. Smock, 61 Mo. 213; Sterne v. Woods, 11 Mo. 638.

Anderson & Whittington and McAlee & Foley for respondents.

(1) Appellants' sole defense against defendant Bennett (formerly Mosberger), is contained in Point 2 of their "Assignments of Error," and "Points and Authorities," and is that said defendant was guilty of laches and therefore not entitled to recover. (a) One not prejudiced by delay on the part of another cannot meritoriously interpose a plea of laches. Matthews v. Van Cleve, 221 S.W. 38. (b) Laches is not mere delay, but delay that works a disadvantage to another. Hunter v. Hunter, 39 S.W. (2d) 359; Collins v. Lindsay, 25 S.W. (2d) 84; Jones v. McGonigle, 37 S.W. (2d) 892; Carlin v. Bacon, 16 S.W. (2d) 46. (c) All questions as to the essential merit of the claim of Bennett against the estate of Mosberger, are res adjudicata inasmuch as the allowance of the claim by the probate court was sustained by the Circuit Court of St. Louis County and became a final judgment after this present case was filed. (d) Laches, to be available as a defense, must be pleaded. Neville v. D'Oench, 34 S.W. (2d) 507; Ambruster v. Ambruster, 31 S.W. (2d) 28; Hecker v. Bleish, 3 S.W. (2d) 1008. (2) Insofar as the defendant Bennett is concerned, the trust sought to be established is a trust arising ex maleficio, and as to creditors of William A. Mosberger, deceased, it is fraudulent and void. Jamison v. Miss. Valley Trust Co., 207 S.W. 788. (3) The evidence adduced as to fraud is amply sufficient to warrant the trial court in setting aside the deed for the benefit of the defendant Amy Bennett. Sec. 3117, R.S. 1929; McElvain v. McElvain, 20 S.W. (2d) 912; Lynes v. Holt, 1 S.W. (2d) 122; Lander v. Ziehr, 150 Mo. 413. (4) Where a defendant shows himself entitled to affirmative relief against a codefendant, he will, as against him, be treated as a plaintiff to the extent and for the purpose of administering such relief. Hicks v. Jackson, 85 Mo. 294. (5) This court will in cases of this nature, defer to the findings of the trial chancellor. Daggs v. McDermott et ux., 34 S.W. (2d) 50; Walsh v. Walsh, 226 S.W. 242.

ELLISON, P.J.

In May, 1919, one William A. Mosberger, since deceased, conveyed certain real estate in St. Louis County to the appellant Julius G. Teschemacher by his sole warranty deed for a recited consideration of $2500. Thereafter, in December, 1919, the said Teschemacher, to secure the payment of an alleged promissory note for $2,000, executed a deed of trust on the property to the defendant Richard Hord as trustee for the appellant C.F. Beehler. This suit in equity, brought by four of the heirs of the deceased grantor, Mosberger, complains that both of said transactions were fraudulent, and seeks: (1) to cancel said deed of trust; (2) to have the appellant grantee, Julius G. Teschemacher, declared a trustee ex maleficio, and to establish a trust in the land in favor of all the heirs of Mosberger; (3) or to have said warranty deed set aside so that the land will pass to said heirs by descent, and for partition. The chancellor canceled both the deed and the deed of trust and Teschemacher, grantee in the warranty deed, and Beehler, beneficiary in the deed of trust, have appealed.

The foregoing introductory statement does not, however, give an accurate picture of the full scope of the petition, of the parties, or of the issues. It will be necessary to state further facts. The warranty deed assailed is recorded in Book 451, page 10, office of the Recorder of Deeds of St. Louis County; the deed of trust, in Book 469, page 24, said recorder's office. The real estate involved is described as follows:

"Lots numbered five (5) and seven (7) of block four (4) of the J.F. Meyer Subdivision in Midland Heights a subdivision of U.S. Survey 912 and 1920, township forty-six (46) north, range six (6) east, according to plat thereof recorded in plat book three (3), page fifty-seven (57), of the St. Louis County Recorder's Office."

After making the warranty deed on May 19, 1919, the grantor, William A. Mosberger died in 1923, leaving no lineal descendants, father, mother, brother, sister or their descendants. His only collateral heirs were uncles and aunts, they being brothers and sisters of his deceased mother, to-wit: the appellant Julius G. Teschemacher, the defendants Hugo M. Teschemacher and Minnie Loertcher, and Julia Straube. The aunt Julia Straube died in 1925 after instituting this suit and the cause was revived in the circuit court in the names of her four children, the present plaintiffs and respondents, who were, as will be seen, cousins of the deceased Mosberger. The petition impleads three defendants named Hesse, who are alleged to claim some interest in the land as heirs of Mosberger. The record recites they were grandsons of Julia Straube. The chancellor's decree found they had no interest in the title. Why they were not heirs of Mosberger as much as the four plaintiff children of Julia Straube the record does not disclose.

Mosberger had married the defendant Amy Mosberger in 1911. They lived together only five weeks. After the separation he went to live with his mother on the land here involved. She died in 1917, and, it seems, devised the land to him in her will. Prior to that, in November, 1916, Mosberger's wife had instituted a suit against him in the Circuit Court of the City of St. Louis for separate maintenance. In January, 1917, she obtained an allowance in that proceeding of $150 suit money and $50 per month maintenance pendente lite. Mosberger appealed from this order to the St. Louis Court of Appeals, where the judgment was affirmed in November, 1919, Mossberger v. Mossberger, 202 Mo. App. 271, 215 S.W. 760. During the pendency of this appeal on April 28, 1919, the circuit court allowed her $1400 and costs for maintenance and suit money awaiting the appeal, and awarded execution therefor. On May 14, 1919, Mosberger filed a motion in the circuit court to set aside the above $1400 allowance and to quash the execution. Five days thereafter on May 19, while this motion was pending and undetermined, Mosberger executed to his uncle Julius G. Teschemacher the warranty deed attacked in this case. Such is the background behind the making of the deed.

Mosberger's motion to set aside the $1400 judgment in the separate maintenance suit was sustained and the judgment set aside on May 26, 1919. This left that proceeding with the original order made in January, 1917, allowing $150 suit money and $50 per month maintenance pendente lite, still standing, and with unpaid installments accumulating. In October, 1920, Mosberger filed a divorce suit in the St. Louis County Circuit Court against his wife, Amy. He obtained a default decree in February, 1921, based on service of process by publication.

Mosberger died intestate on July 29, 1923. About two months before his death he transferred to his uncle, the appellant Julius G. Teschemacher, stocks and bonds of the face value of about $6000. The defendant Edward W. Terry, Public Administrator of St. Louis County was appointed administrator of Mosberger's estate in September, 1923. Three months later, in December, 1923, Mrs. Mosberger filed a suit in St. Louis County against the administrator, Terry, to set aside the aforesaid default divorce decree obtained against her by his intestate, the...