Troll v. City of St. Louis

• Decision Date: 04 May 1914
• Docket Number: No. 14834.,14834.
• Citation: 168 S.W. 167,257 Mo. 626
• Parties: TROLL v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

168 S.W. 167

257 Mo. 626

TROLL v.CITY OF ST. LOUIS et al.

No. 14834.

Supreme Court of Missouri.

May 4, 1914.

1. EVIDENCE (§ 11) — JUDICIAL NOTICE — FINANCIAL DEPRESSION.

The Supreme Court takes judicial notice of the historial fact that the times around 1871-1873 were ones of severe financial depression and falling prices.

2. WORDS AND PHRASES — ARPENT.

An "arpent" is a land measure varying in dimension from .84 of an acre to 1.04 acres and to 1.28 acres, accordingly as the arpent meant is an arpent de Paris, an arpent commun, or an arpent d'ordonnance.

3. FRAUD (§ 50) — EVIDENCE — PRESUMPTION.

Fraud is never presumed, and may not rest alone on supposition or conjecture.

4. FRAUD (§ 38) — RIGHT OF ACTION — LACHES.

A charge of fraud against the dead after a pronounced lapse of time will not be considered, on the ground of laches.

5. PARTNERSHIP (§ 245) — DISSOLUTION AND SETTLEMENT — JURISDICTION.

Under the statutes in force in 1873, jurisdiction of a partnership estate could not be transferred from the probate court to the circuit court by means of a voluntary assignment for benefit of creditors by the surviving partner, and such a deed of assignment was void.

6. EQUITY (§ 67) — "LACHES" — NATURE AND ELEMENTS.

"Laches," the root meaning of which is laxness, negligence, neglect, is an equitable doctrine or concept, and consists in not doing something which a party might do and might reasonably be expected to do in the vindication of his right; as an unreasonable and unexcused delay it is the antonym of vigilance; it does not rise to the dignity of estoppel, and yet in its equitable application it borrows from the doctrine of estoppel; while time is an element in it, yet it moves independently of limitations ; it is free from artificial or fixed rules, having regard to the relation of the parties to each other and the subject-matter ; is to be applied in each case according to its particular circumstances to reach substantial justice, and it is principally a question of the iniquity of permitting a claim to be enforced founded upon some change in the condition or relation of the property or the parties.

7. PARTNERSHIP (§ 178) — RIGHTS OF CREDITORS — PARTNERSHIP ASSETS.

Creditors of a partnership have the primary right to have their claims against it paid out of the partnership assets.

8. PARTNERSHIP (§ 258) — RIGHTS OF CREDITORS — LACHES.

Claims of creditors of a partnership, who for 32 years stood by without action and saw land claimed and administered as a part of the partnership estate sold in partition by the assignee of the partnership estate for the benefit of creditors, and from that time in the actual, open, continuous, and peaceable possession of the purchaser and his grantees, who had made extensive and valuable improvements thereon, in the absence of any excuse offered or shown for delay as against such purchaser and grantees, whether in the form of allowances in the probate court or elsewhere, were barred by laches.

9. PARTNERSHIP (§ 258) — DEATH OF PARTNER — RIGHTS OF HEIRS — LACHES.

The heirs of a partner whose rights were wholly subordinate to the claims of creditors which were barred by laches in an action to quiet title by the public administrator of the partnership estate, and the administrator d. b. n. c. t. a. of such partner, were likewise barred by laches.

10. ADVERSE POSSESSION (§ 13) — ELEMENTS.

Where land a part of which was claimed and administered as partnership assets for the benefit of creditors, though the legal title remained in the partner who had purchased it, was sold in a partition suit in 1875 by the assignee for the benefit of partnership creditors, the purchaser and his grantees who from that time were in open, peaceable, continuous, and adverse possession making extensive and valuable improvements thereon, paying taxes, etc., acquired a good title as against the partnership estate and the heirs of the deceased partner; there being present every element of limitations, to wit, the presence of a period of time prescribed by the statute, a claim of right and title, and an adverse possession during the prescribed time and at least a color of title.

11. LIS PENDENS (§ 1) — NATURE AND GROUNDS.

"Lis pendens" means a suit, a controversy in court, and involves the essential and primary concept of jurisdiction of the subject-matter of the litigation and of the parties, founded on the policy of giving full effect to a judgment which might be rendered in a pending suit, and jurisdiction of the parties and the subject-matter is indispensable thereto.

12. PARTNERSHIP (§ 246) — PROPERTY OF INDIVIDUAL PARTNER — LEGAL TITLE — GUSTODIA LEGIS.

An individual partner purchasing land and his testamentary trustees had the legal title as against the partnership estate in administration in the probate court, which could only be united with the equitable title by the decree of some court having equity jurisdiction or by apt conveyance; so that it did not come into the custody of the law as an incident to the probate court's jurisdiction over the partnership estate

13. WORDS AND PHRASES — "CUSTODIA LEGIS.'

Mere title in a partnership, as distinguished from legal title in one of the partners, is not within concept of "custodia legis," which term involves the court's domination over some corporeal or uncorporeal thing not a controversy or an inquiry ; that custody only which the officer

has the right to assume over property by virtue of legal process such as attachment, replevin, receivership or administration.

14. PARTNERSHIP (§§ 68, 246) — PARTNERSHIP PROPERTY AND FUNDS — PURCHASE OF REAL ESTATE — EQUITY.

Real estate purchased by partnership funds for partnership uses, though the title be taken in the name of one partner, is in equity treated as personal property so far as is necessary to pay the partnership debts or adjust the equities of the partners, for which purpose a surviving partner can sell it, though he cannot transfer the legal title which passes to the heirs or devisees of the deceased, though his sale may vest the equitable ownership and enable the purchaser, in a court of equity, to compel the heirs to convey the legal title.

15. LIMITATION OF ACTIONS (§ 109) — PENDENCY OF LEGAL PROCEEDINGS — CUSTODIA LEGIS.

The equitable right of a partnership in land purchased from partnership funds for partnership use, title to which was taken in the name of one partner, was not in custodia legis by virtue of the probate court's jurisdiction of partnership assets for the benefit of creditors.

16. LIMITATION OF ACTIONS (§ 109) — ACTION FOR REAL PROPERTY.

If an individual partner's interest in real estate standing in his name but bought with the firm's money was as personal property in the probate court's custody, on insolvency of the firm, yet it was real estate in fact, so that such custody would not defeat the operation of the statute of limitations and the doctrine of laches as to subsequent purchasers from the partner's executor.

Woodson and Bond, JJ., dissenting.

In Banc.Error to St. Louis Circuit Court ; Wm. M. Kinsey, Judge.

Action to quiet title by Harry Troll, administrator in charge of the estate of Murdoch & Dickson, against the City of St. Louis and others.Decree for defendants, and plaintiff brings error.Affirmed.

John M. Dickson, of St. Louis, for plaintiff in error.E. T. & C. B. Allen, Perry Post Taylor, Geo. W. Lubke, and Nagel & Kirby, all of St. Louis, for certain defendants in error.Robert & Robert, of St. Louis, for defendant in error Chicago, B. & Q. Ry. Co.Charles W. Bates and Benjamin H. Charles, both of St. Louis, for defendant in error City of St. Louis.

LAMM, C. J.

This suit is under former section 650(now 2535) to try and to determine title to real estate in the city of St. Louis.The pleadings cover 79 pages of print.Absent any question raised on their sufficiency, we shall not reproduce even a summary of them.Presently something more will be said of them.For present purposes it will do to say that they are in scope and object sufficient to raise the propositions discussed by counsel.

Dates are of significance.In 1871Charles K. Dickson and John J. Murdoch were, and for a score or more of years had been, partners in St. Louis dealing under the firm name and style of Murdoch & Dickson.Possibly they were general partners as real estate dealers, but the scope of the partnership is not clear.In 1871 Dickson died, and Murdoch, as surviving partner, took upon himself the burden of administering upon the partnership estate under the auspices of the probate court, giving a bond therein in the penal sum of $125,000.In 1873 Murdoch, having theretofore made two elaborate settlements in that court, as surviving partner made a statutory deed of assignment of the partnership assets to one John G. Priest for the benefit of creditors of Murdoch & Dickson.Subsequently in that same year, failing to obey an order of the court to give an additional bond as surviving partner, he was removed.From the record facts before us, we have no doubt the firm owed in excess of its assets and was insolvent.We take judicial notice of the historical fact that the times were ones of severe financial depression and falling prices.Among the firm's liabilities of over $200,000 was a liability of over $80,000 to Dickson, and one of $34,000 to Eads, and one of about $5,000 to Barton Bates, trustee.Dickson died testate, his will nominating Barton Bates and James B. Eads, two of his friends, as executors.It also created a trust in the residue and remainder of his estate, and they were nominated trustees of the trust estate.There were excluded from this "residue and remainder" only an annuity to his sister and his mansion house and grounds and personal property in and about the same and appurtenances to that establishment, devised to his wife absolutely.They qualified as executors, and in 1890 settled finally his individual estate and were...