Summet v. City Realty & Brokerage Co.

• Decision Date: 27 November 1907
• Citation: 208 Mo. 501,106 S.W. 614
• Court: Missouri Supreme Court
• Parties: SUMMET et al. v. CITY REALTY & BROKERAGE CO. et al.

106 S.W. 614

208 Mo. 501

SUMMET et al. v. CITY REALTY & BROKERAGE CO. et al.

Supreme Court of Missouri, Division No. 1.

November 27, 1907.

1. JUDGMENT—RES JUDICATA—PARTIES CONCLUDED—PRIVIES.

A judgment is binding, not only on the parties to the suit, but on their privies, whether in contract, estate, blood, or law.

2. SAME—MATTERS DETERMINED.

Where in ejectment to recover property sold under a deed of trust, the defendants by cross-bill sought to have the sale set aside because of the fraud and misconduct of the trustee, they thereby impliedly admitted the valid execution of the deed of trust, so that a judgment against the defendants in that suit was res judicata of the due execution and validity of the trust deed, both because of such admission, and under the rule that res judicata applies, not only to the matters actually litigated, but to every question which properly belongs to the subject of litigation, and which the parties by reasonable diligence might have brought forward at the time.

3. SAME—SPLITTING CAUSES OF ACTION—DEFENSES.

A party must try the entire cause of action or make his entire defense in the same action, and will not be permitted to split either his cause of action or defense and litigate them separately, when all the matters properly and naturally relate to the subject-matter of litigation.

4. SAME—SET-OFF AND COUNTERCLAIM.

The rule that a party may not split his entire cause of action or defense does not apply to a set-off or counterclaim which may be pleaded or not, at the defendant's election.

5. MORTGAGES—TRUST DEED—CAPACITY OF LENDER—ESTOPPEL TO ATTACK.

A borrower of money from a life insurance company, who executes a deed of trust on real property as security therefor, and the borrower's privies, are estopped to deny the power of the corporation to loan the money and to take the deed of trust as security.

6. CORPORATIONS—RIGHT TO HOLD REAL ESTATE—PERSONS ENTITLED TO OBJECT.

Where a foreign insurance company, having loaned money on real estate in Missouri, purchased the same at its own foreclosure sale, only the state could object that the company held the land for more than six years, in violation of Const. 1875, art. 12, § 7 [Ann. St. 1906, p. 304].

7. ESTATES TAIL — STATUTES — CONVERSION — CONTINGENT REMAINDER.

An antenuptial contract, conveying certain property to the grantor's affianced wife, and to the heirs of her body by him begotten, created an estate tail in the grantee, which was converted by Gen. St. 1865, c. 108, § 4, into a life estate in the wife with a contingent remainder in fee in favor of the persons answering the description "the heirs of her body," etc., on the wife's death.

8. REMAINDERS — CONTINGENT REMAINDER — CONVEYANCE BY REMAINDERMEN.

Where land was conveyed to C. for life, with a contingent remainder in fee to the heirs of her body on C.'s death, and C. and all her children who owned any interest in the land, after reaching majority, joined in conveyances to an insurance company as security for a loan, and C. thereafter died without leaving any other heirs, such conveyances covered all outstanding interests, under the rule permitting alienation of contingent remainders.

9. SAME—CONSIDERATION.

Where contingent remaindermen joined with the life tenant in executing a deed of trust on the land as security for a loan, it was immaterial to the validity of the conveyance of their interest that they received no part of the loan.

10. QUIETING TITLE — CROSS-BILL — REQUISITES.

Rev. St. 1899, § 650 [Ann. St. 1906, p. 667], provides that any person claiming any title, estate, or interest in any property may sue any person or persons having or claiming to have any title, estate, or interest in such property, whether in possession or not, to ascertain and determine the estate, title, and interest of the parties respectively, and to define and adjudge the same. Held, that a cross-bill to quiet title under such section need only allege how defendants acquired their title, and then state generally that defendants claim an interest in and to the premises, adverse to plaintiffs, and pray that the respective interests may be ascertained,

and a decree entered adjudging the rights of the parties.

Appeal from Circuit Court, Jackson County; James H. Slover, Judge.

Ejectment by Mary E. Summet and others against the City Realty & Brokerage Company and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

This is a suit in ejectment for the possession of the south 49 feet of lot 146, in block 11, McGee's addition to Kansas City, Mo. The petition is in the usual form. The answer of Anna Voypool is a disclaimer of any interest in the premises, and an allegation that she was in possession of the property as tenant of defendant, the City Realty & Brokerage Company, and that she was ready and willing to attorn to the party to whom the title and possession of the property may be adjudged. The defendant company's answer is, First. A general denial. Second. A plea of res judicata. Third. A cross-bill, claiming to be the owner in fee of the premises, and admits its possession. Then it proceeds to allege that plaintiffs claim some right, title, or interest in and to the property, but the character and nature of which is to the defendant unknown, except that it is adverse and prejudicial to defendant's title. The reply is a general denial of the new matters contained in the answer and cross-bill. The plaintiffs demanded a trial by jury, claiming that the suit was one at law, while the defendant contended that the answer and cross-bill converted it into an equitable proceeding, and was for that reason triable before the court. The court took the latter view of the cause, and proceeded, over the objections and exceptions of plaintiffs, to try the case as one of equity. The findings and decree were for the defendant, and in proper form and in due time plaintiffs appealed the cause to this court.

The facts are few and simple, and are stated by counsel for respondent, substantially, as follows: "April 25, 1862, D. A. N. Grover was the owner of the south 49 feet, of lot 146, block 11, McGee's Addition, in Kansas City, Mo.; and on that day he entered into an antenuptial contract with Latitia J. Cockrell, whereby this and other property was granted to his said intended wife `for her separate use, benefit, and behoof and the heirs of her body begotten by the said D. A. N. Grover, forever.' May 1, 1862, the said parties were married to each other. February 18, 1863, a son, Charles Grover, was born of said marriage. May 13, 1864, a second son, D. A. N. Grover, Jr., was born of said marriage. April 27, 1866, a daughter, Gertrude A. Grover, was born of said marriage. February 9, 1868, a third son, Shelley Grover, was born of said marriage. October 17, 1873, a fourth son, Pliny Warner Grover, was born of said marriage. No other children were born of said marriage. February 15, 1876, the said Pliny Warner Grover died. February 11, 1880, D. A. N. Grover, the said husband of Latitia J. Cockrell Grover died. July 10, 1890, the said Latitia J. Cockrell Grover, D. A. N. Grover, Jr., Gertrude A. Grover, and Shelley Grover, all then single persons, and Charles Grover and Mary J. Grover, his wife, united in the execution and delivery of a deed of trust, whereby they `granted, bargained, and sold, conveyed and confirmed' the said land unto Theodore S. Case, as trustee for the Prudential Insurance Company of America, in trust to secure one note for $1,000 and another note for $8,000, executed by all of the said grantors on said July 10, 1890, to said insurance company, which notes represent a loan that day made to said grantors by the said insurance company. The deed of trust was properly acknowledged. July 11, 1890, the deed of trust was recorded in the proper office. August 20, 1893, Latitia J. Grover deeded said property to Charles Grover, consideration $621.88. July 10, 1894, Charles Grover and wife, D. A. N. Grover, Jr., and wife, Shelley Grover and wife, deeded said property to Gertrude A. Grover, consideration $100. This deed was made subject to `a deed of trust for $8,000 and interest thereon from January 10, 1894.' October 13, 1894, Charles Grover and wife and Gertrude A. Grover deeded said property to Mary E. Summet, subject to `a deed of trust of $8,000, and interest thereon from January 10, 1894, which is now on record in the recorder's office of Jackson county, Missouri.' The consideration named in this deed is $1,500, but Mr. Summet testified that the actual consideration was $275. February 21, 1895, the deed of trust was foreclosed and the land sold after proper notice and because of default in the payment of the notes and interest secured by the deed. The Prudential Insurance Company of America was the purchaser, and on said day the said trustee made, executed, and delivered his trustee's deed to said land to said insurance company. February 27, 1895, said trustee's deed was recorded in the proper office. In March, 1895, said insurance company brought its action of ejectment against William L. A. Summet, Mary E. Summet et al., in the Jackson county circuit court, claiming possession of the property in controversy. In April, 1895, defendants in said ejectment case filed answer, setting up defects in the trustee's sale, in that the trustee was guilty of fraud and misconduct in stating to prospective bidders that the sale would be made at one hour of the day, and that in violation of those statements made it at another and different hour, and thereby caused the property to sell for a much less sum than it was really worth, and for which it would have sold had it not been for the statements; and prayed for affirmative relief, and filed an application for change of venue; this change of venue was granted,...