Stoffel v. Reiners

• Decision Date: 17 October 1876
• Citation: 3 Mo.App. 33
• Parties: JOHN G. STOFFEL et al., Respondents, v. GEORGE REINERS et al., Appellants.
• Court: Missouri Court of Appeals

3 Mo.App. 33

JOHN G. STOFFEL et al., Respondents,

v.GEORGE REINERS et al., Appellants.

St. Louis Court of Appeals, Missouri.

Oct. 17, 1876.

1. A party having acquired title through fraud on the part of his grantor, he being cognizant of the facts, cannot maintain his title in a court of equity.

2. Where it is sought to sustain a sale of property belonging to minor heirs, under proceedings set on foot, with a view of purchasing himself, by one who stands in loco parentis, and who, being guardian ad litem, employs counsel on both sides, and finally becomes the purchaser, the property must be shown to have brought something more than half its value.

3. A misdescription in the sheriff's advertisement of the property to be sold under a decree in partition vitiates the sale, and is a defect which cannot be cured except by new advertisement and sale.

4. It is not error to strike out matter in an answer which could have no influence in the decision of the cause.

5. Appellate courts have no power to render judgment on claims accruing since the rendition of the judgment below.

APPEAL from St. Louis Circuit Court.

Affirmed.

William Kreiter, for appellants, cited: 1 Edw. V.-C. R. 350, 383; 1 McCle. & Yo. 334.

John P. Hudgens, for respondents, cited: Hutchison v. Cassidy, 46 Mo. 431; 38 Mo. 395; 47 Mo. 276, 356; Fugle v. Hobbs, 42 Mo. 541; 48 Mo. 243, 273; 42 Mo. 537; Wag. Stat. 1018, sec. 20, p. 1034, sec. 5; 32 Mo. 366; 34 Mo. 338; 36 Mo. 143; 50 Mo. 198; 55 Mo. 500; 58 Mo. 158, 458; 60 Mo. 172; Kerr on Fraud, 318-319, and note; 47 Mo. 304; 44 Mo. 560.

BAKEWELL, J., delivered the opinion of the court.

This is a proceeding in equity, commenced March 18, 1874, to set aside a decree in partition, and a deed made by the sheriff in pursuance of the decree.

It appears that Charles Frederick Lang died intestate, in St. Louis County, on July 17, 1856, leaving a widow, Mary J. Lang, and two minor children, plaintiff Josephine (now the wife of plaintiff John G. Stoffel) and Peter Lang. At the time of his death, Charles F. Lang owned lot 3 in block 3 of Yeatman and Holmes' addition to St. Louis, on which was erected a brick dwelling-house, the property in dispute in the present action.

The widow administered until her intermarriage, in 1857, with defendant Jacob Schmitz.

In October, 1868, Jacob Schmitz employed George Reiners to put up a house for him. The house was to cost $18,300, and to be erected on a lot owned by Schmitz. It was agreed between Schmitz and Reiners that Reiners was to be paid $2,000 cash when the cellar was finished; when the second-story brick-work was completed, Reiners was to receive in payment the house and lot 3 in block 3 in controversy in this suit; the remainder of the consideration for the building of the house was to be paid from time to time up to the completion of the house.

When the second-story brick-work was completed, Reiners began to press Schmitz to convey to him the house, and then first discovered, he says, that Schmitz did not own the house, but that it belonged to the heirs of the former husband of Schmitz's wife--that is, to Josephine and Peter Lang, the step-children of Schmitz, living under his roof. These children were then both minors, Josephine having been born on September 18, 1851, and Peter being about two years younger. Reiners swears that, in June, 1869, Schmitz told him, in the presence of plaintiff Josephine, that he could not make him a deed to the house, as he had no title, but that he would have the property sold in partition as soon as Josephine was of age; that he would then bid in the property himself and make Reiners a deed. Josephine swears she heard nothing of this conversation. As soon as Josephine was of age, Schmitz employed an attorney to commence a partition suit for the partition of this property. In this suit, which was commenced on November 19, 1869, Josephine Lang was made plaintiff, and Jacob Schmitz and wife and Peter Lang, a minor, were defendants. Schmitz's attorney acted as counsel for plaintiff, and was paid by Schmitz; and Schmitz's attorney also employed counsel who acted for the defendants in this suit. Schmitz was appointed guardian ad litem of the minor defendants, and an attorney who was employed by Schmitz's attorney, and paid by Schmitz, filed an answer for all the defendants.

Josephine swears she never heard of the commencement of the suit, and knew nothing of it until after the property was sold in partition; but the attorney whose name is signed to the petition, and who was employed by Schmitz, swears that he explained the whole matter to her, and took her affidavit to the petition in his capacity as notary public. Her name is not written to the affidavit in her own handwriting, though she could write; but her name is written by her mother, and a mark appended. The attorney who took the affidavit swears that this was done because she was sick. The testimony is conflicting on this point.

Such proceedings were had in the partition suit that a decree was obtained, and an order of sale granted for a piece of property described in the following words:

“The premises in the petition described are as follows: Lot number three of block No. four of Yeatman & Holmes' addition to the city of St. Louis, according to the plot of said addition on file in the recorder's office of St. Louis County, and which said lot contains a front on the east side of Broadway, in said city, of twenty-seven feet, by a depth, eastwardly, of the same width, of one hundred and thirty-three feet, more or less, to a fifteen-foot alley, and bounded north by lot number two of said block, south by lot No. four, east by said Broadway.” This description is erroneous in this, that the property is not in block 4, but in block 3, as described in the petition. By this description, however, it was advertised and sold by the sheriff, and struck off to Jacob Schmitz for $1,450, on May 30, 1870. It does not appear that he ever actually paid for the property more than the costs of sale, $106.35; nor did either of his step-children receive any of the proceeds of the sale. Before the execution of the sheriff's deed, on application of all the parties to the partition suit, by their attorneys, the sheriff was directed by the court to reform his deed by describing the property as in block three; and an entry was made in the Circuit Court declaring the decree amended by the substitution of the word “three” for “four” in the description of the block; and the property was described in the sheriff's deed as set out in the petition. On June 15, 1870, Schmitz and wife conveyed to Reiners; but in the description of the property in their deed the old mistake reappears, the block being called “four” instead of “three.” Schmitz was applied to by Reiners to give a correct deed, but he refused to do so, and Reiners commenced proceedings against Schmitz to reform his deed, in which he obtained a decree against Schmitz, vesting in Reiners all the interest of Schmitz and wife in the property described in the petition in the partition suit as in block three. Reiners took possession of the property, which is worth about $20 a month to rent, and has had possession ever since; and this suit is commenced...