Walker v. Roberts

• Decision Date: 03 June 1918
• Docket Number: No. 18611.,18611.
• Citation: 204 S.W. 16
• Parties: WALKER v. ROBERTS et al.
• Court: Missouri Supreme Court

204 S.W. 16

WALKER v. ROBERTS et al.

No. 18611.

Supreme Court of Missouri, Division No. 2.

June 3, 1918.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

Action by Isom B. Walker against Shannon B. Roberts and others. Judgment for defendants, and plaintiff appeals. Affirmed.

This is an action to determine interest in a certain 40 acres of land situate in Boone county. The case was tried before the court without a jury, and judgment rendered for defendants. Thereupon plaintiff, after the usual motions, appealed.

Since upon the view we take of the case the pleadings are important, we shall set out the petition, and set down in the statement a résumé of the answer and replica; ion. The petition upon which the case was tried, caption and signature of counsel omitted, reads thus:

"Plaintiff states: That he is the owner, entitled to the possession, and claims title to the following described real estate, situated in Boone county, state of Missouri, to wit: forty (40) acres, more or less, the northeast quarter of the southwest quarter of section thirty-four (34), township fifty-one (51), of range twelve (12). That the defendants, as plaintiff is informed and believes, claim some right, title, interest, and estate in and to said real estate and that said claim is adverse and prejudicial to plaintiff: Wherefore, plaintiff prays the court to ascertain and determine the estate, title, and interest of the plaintiff and defendants herein, respectively, in and to said real estate, and to define and adjudge by its judgment and decree the title, estate, and interest of the parties plaintiff and defendants herein, severally, in and to said real estate."

While there are five defendants only two of them, namely, Shannon B. Roberts and David E. Roberts, asserted any actual interest in the title to the land. The other defendants were A. S. McCallister, trustee, and John S. Roberts and Jessie Roberts, beneficiaries in a certain deed of trust, which deed of trust it seems was paid off before the case was tried. Only Shannon B. Roberts and David E. Roberts answered, each separately. The separate answer of David E. Roberts was a general denial coupled with specific denials that plaintiff was the owner of the land in controversy, or that he had any title or interest therein, or that he was entitled to possession thereof, and averred that defendants Shannon B. Roberts and David E. Roberts were in possession of said lands, and that they were the owners thereof in fee simple. The answer of Shannon B. Roberts was similar in all respects to that of his codefendant, but it averred, in addition to the denials contained in the answer of the latter, that the other defendants, namely, A. S. McCallister, John S. Roberts, and Jessie A. Roberts, neither had any interest in nor made any claim to said lands. The reply denied the allegation of the above separate answers, and in addition asked that:

The "court hear and finally determine any and all rights, claims, interests, liens, and demands whatsoever of the parties, or of any of teem, concerning or affecting said real estate, and award full and complete relief to the parties herein as the facts and circumstances may justify."

The facts shown upon the trial of the case, which, as stated, was before the court without a jury, and one wherein no instructions were either asked or given on behalf of either side, run substantially thus:

The common source of title was agreed to be one David A. Roberts, who was the father of the defendants herein. On the 28th day of August, 1893, said David A. Roberts conveyed the land in controversy to the defendants by a warranty deed, duly acknowledged and recorded in the proper office on November 27, 1893. The consideration for the lands conveyed was the sum of $200, receipt of which the deed itself acknowledged. Prior to the making of the above conveyance David A. Roberts had, in 1883, made his promissory note to one B. E. Walker, the father of plaintiff, for the sum of $535. Numerous payments were made on this note, but according to the evidence adduced by plaintiff a balance was left unpaid thereon. The payee of this note, the said B. E. Walker, died in the year 1894. His administrators, who seem to have been his sons, H. J. Walker and J. J. Walker, brought suit against said David A. Roberts, and got judgment for some $500 balance on this note, on the 1st day of July, 1897, which was some four years after the conveyance of the land in controversy by David A. Roberts, the judgment debtor, to these defendants. Upon a final settlement of the estate of B. E. Walker, the judgment against David A. Roberts was turned over to plaintiff herein. No written assignment upon the judgment, on the margin of the record or elsewhere, appears, nor was there shown upon the instant trial any assignment by the administrators to this plaintiff, or any...