Summet v. City Realty & Brokerage Co.

• Decision Date: 24 December 1907
• Citation: 106 S.W. 614,208 Mo. 501
• Parties: MARY E. SUMMET et al., Appellants, v. CITY REALTY & BROKERAGE COMPANY et al
• Court: Missouri Supreme Court

106 S.W. 614

208 Mo. 501

MARY E. SUMMET et al., Appellants, v. CITY REALTY & BROKERAGE COMPANY et al

Supreme Court of Missouri, First Division

December 24, 1907

Appeal from Jackson Circuit Court. -- Hon. Jas. H. Slover, Judge.

Affirmed.

English & English for appellants.

(1) The plea of res judicata was not sufficient under any rule of pleading. One suit in ejectment does not bar a second. Demurrer thereto should have been sustained. (2) In this action the issues were those of the legal title, and right of possession. Plaintiffs were entitled to a jury trial. R. S 1899, sec. 691. There was no waiver of jury trial. (3) The deed of trust to Case was void as to the children of D. A. N Grover and Latitia Grover. It created no estoppel. They received no consideration. The court erred in admitting the deed from the Prudential Insurance Company to Carey. It was incompetent for the reason it did not purport to be executed by the Insurance Company, nor was it acknowledged as provided under the statutes. R. S. 1899, sec. 913. Also in admitting the second deed; it was not signed by the "president or the presiding member, or trustee" or the corporation and is void. R. S. 1899, sec. 904. (4) Under the pleading the findings are not sustained by the evidence, and the judgment is erroneous in attempting to give equitable relief as no equitable matters were alleged in the pleadings or established by the evidence. Wilson v. Lubke, 176 Mo. 210.

Haff & Michaels and W. M. Walker for respondents.

(1) A contingent remainder is vendible during the continuance of a life estate, and if the remaindermen survive the life tenant, a good title will pass to the purchaser or his grantees. Godman v. Simmons, 113 Mo. 122; Findlay v. Babb, 173 Mo. 263; Clark v. Sires, 193 Mo. 502. (2) Grantors or their privies cannot impeach their deeds for failure of consideration, especially after the land conveyed reaches the hands of purchasers for value without notice. Wineland v. Coonce, 5 Mo. 296; Gordon v. Ritenour, 87 Mo. 54; Hollocher v. Hollocher, 62 Mo. 267. (3) Money advanced to a life tenant on a deed of trust signed by the life tenant and by the remaindermen at the request of the life tenant, is a good consideration to the remaindermen, and even as between the parties to the deed the remaindermen are estopped from asserting a failure of consideration to them. Mullanphy v. Reilly, 8 Mo. 675; Bank v. Graham, 74 Mo.App. 251; Halsa v. Halsa, 8 Mo. 303; Houck v. Frisbee, 66 Mo.App. 16; Coal Co. v. Blake, 85 N.Y. 226; Edwards v. Schoeneman, 104 Ill. 278; Post v. Bank, 38 Ill.App. 259; Johnston v. Bldg. Assn., 104 Pa. St. 394; 6 Am. and Eng. Ency. Law (2 Ed.), 761; 14 Ib. 285; 23 Ib. 511. (4) An acknowledgment by the president of a corporation that the instrument was the voluntary act and deed of the corporation is in compliance with the statutes and is good. R. S. 1899, secs. 904, 982; Eppright v. Nickerson, 78 Mo. 483; Huse v. Ames, 104 Mo. 103; Gross v. Watts, 104 S.W. 30. (5) A corporation deed signed and acknowledged by a vice-president is valid. R. S. 1899, sec. 982; Huse v. Ames, 104 Mo. 91; Ballard v. Carmichael, 83 Tex. 355. (6) The State alone can question the right of a corporation to hold property more than six years. Hall v. Bank, 145 Mo. 418; Bank v. Matthews, 98 U.S. 621; Bank v. Poitiaux, 3 Rand. (Va.) 136. (7) Grantors and their privies are estopped from questioning the power of a corporation to loan money and take deeds of trust. Broadwell v. Merritt, 87 Mo. 101; Land Co. v. Railroad, 161 Mo. 595; Smith v. Sheeley, 12 Wall. 361. (8) Where judgments go against defendants who have set up equitable defenses, such judgments are binding on the parties and their privies in estate in subsequent suits. Samson v. Mitchell, 125 Mo. 230; Crispen v. Hannavan, 50 Mo. 415; 24 Am. and Eng. Ency. Law (2 Ed.), 724, 726. But even disregarding these judgments, the decree was for the right party and therefore will not be reversed. R. S. 1899, sec. 865; Gardner v. Railroad, 135 Mo. 90; Bragg v. Railroad, 192 Mo. 331. (9) A suit to quiet title under section 650, Revised Statutes 1899, is equitable in its nature and when a defendant is sued in ejectment and files a cross-bill under section 650 the case should be tried as an equity case. Graton v. Land & Lumber Co., 189 Mo. 332; Harrison Machine Works v. Bowers, 200 Mo. 235; Sampson v. Mitchell, 125 Mo. 230; Martin v. Turnbaugh, 153 Mo. 172; Myers v. Schuchmann, 182 Mo. 171; Swon v. Stevens, 143 Mo. 392; Lincoln Trust Co. v. Nathan, 175 Mo. 32; Ward v. Quinlivin, 65 Mo. 454; Redman v. Adams, 165 Mo. 71; Cass Co. v. Bank, 157 Mo. 133; Wilson v. Lubke, 176 Mo. 217.

English & English for appellants in reply.

(1) The instrument between Grover and his intended wife was but a marriage contract. It was not a conveyance. When supplemented by marriage it was enforcible in equity but was not a legal estate. 19 Am. and Eng. Ency. Law, 1227. The title attempted to be conveyed or pledged was not such as to pass their prospective reversionary interest. The marriage contract was not that her heirs take after her death, but that her heirs by him begotten, and, in want thereof, the property was to revert to his heirs. The facts or the law as laid down in Godman v. Simmons, 113 Mo. 122, do not apply. (2) The deed from the Grover heirs to the plaintiff Mary E. Summet was made before the trustee's sale and after the death of Latitia A. Grover. Plaintiff then had title after the estate had vested in them. The injunction suit offered in evidence by defendant was brought against her and her husband also. She and he answered and in their answer set out a written contract with the insurance company authorizing her to redeem. As this answer and cross-petition was not denied under oath it stood admitted. R. S. 1899, sec. 746. The suit was dismissed as to her and there was no judgment against her or any finding on this answer. This suit adjudicated nothing as to her interest adverse to her, except that its introduction by the respondents in this case authorizes the court below and the court here to indulge for her benefit all presumptions which attend the admission that such a contract existed between her and the insurance company.

OPINION

WOODSON, J.

This is a suit in ejectment for the possession of the south forty-nine feet of lot one hundred forty-six, in block eleven, McGee's addition to Kansas City, Missouri.

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 Missouri; and on that day he entered into an ante-nuptial 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...