Wimpey v. Lawrence

• Citation: 208 S.W. 54
• Decision Date: 30 December 1918
• Docket Number: No. 19554.,19554.
• Parties: WIMPEY et al. v. LAWRENCE at al.
• Court: Missouri Supreme Court

208 S.W. 54

WIMPEY et al. v. LAWRENCE at al.

No. 19554.

Supreme Court of Missouri, Division No. 1.

December 30, 1918.

Appeal from Circuit Court, Jasper County; D. E. Blair, Judge.

Suit by Rela Ann Wimpey and others against Easter M. Lawrence and others for partition of real property and an accounting for rents and profits. Judgment for plaintiffs, and defendants appeal. Reversed and remanded, with directions to dismiss the petition and enter a judgment reforming deed.

O. L. Cravens and George Hubbert, both of Neosho, for appellants.

M. E. Benton and H. Ruark, both of Neosho, for respondents Rela Ann Wimpey and others.

R. H. Davis, of Joplin; for respondent Cecil Ritter.

BROWN, C.

This is a suit in partition, brought in the circuit court for McDonald county to the August term, 1915, and transferred by change"of venue to the circuit court for Jasper county, at Joplin. The Plaintiffs are Rela Ann Wimpey, Delia Ann Krause, M. C. Langford, James E. Ledford, Austin C. Ledford, and Alfred A. Ledford, six of the ten children of Samuel Ledford, who died in said county in 1909, and of his wife Nancy, who died the following year, together with M. E. Benton, who is interested through the other plaintiffs, his clients in this suit, and whose interest it will not be necessary to mention separately from theirs, The defendants arc Easter M. Lawrence, Mary id, Ledford, and Joseph Ledford, children, Cecil Ritter, a minor, the only child of a deceased daughter, and Thomas J. Lawrence, husband of Easter Lawrence.

The land described in the petition is the southeast quarter of the southwest quarter and all the southwest quarter of the southeast quarter except a small triangle in the northeast corner, of section 23, and the south half of the northeast quarter of the northwest quarter of section 26 except a small tract off the west end, all in township 23 of range 34, in McDonald county. The petition states that the land is not susceptible of division in kind and asks for its sale. It also sets out in general terms a former judgment of the McDonald county circuit court ascertaining and adjudging the interest of the parties to this suit as stated in the petition, and that for more than five years the defendants Easter M. Lawrence, her husband Themes J. Lawrence, and Mary Ledford, had been in exclusive possession of the land, appropriating to themselves the entire rents and profits, and asks for an accounting.

The defendants Easter H. Lawrence and. Mary E. Ledford answered by general and, by way of equitable counterclaim, set up with sufficient particularity: That the former judgment mentioned in the petition involved only the legal title to the land in controversy through a warranty deed executed by Samuel Ledford to them on the 27th day of April, 1904, whereby for a valuable consideration, fully executed, the said grantor undertook to convey to them the lands in question in section 23, with adjoining lands in section 26, together constituting the farm of the grantor of 116 acres. That it was determined in that case that, although the grantor intended to include in and convey by the terms of said deed the 56 acres in section 23, the description was insufficient for that purpose, and ask that it be corrected. That the sole issue in that case was the validity of that deed and the sufficiency of such description, and that said defendants were not therefore estopped from securing, in equity, its reformation.

This plea for equitable relief was stricken out by the court at the trial on the sole ground that the former judgment "stands rue judicata of the questions so raised and presented here by said answer, and therefore bars such remedy." The audit defendants duly excepted. Joseph Ledford answered by disclaimer, having released any interest he might otherwise have to his defendant sisters.

The record of the former suit was introduced and showed the following facts: it was brought by respondents against the defendants Mary E. Ledford and Easter M. Ledford (with whom was impleaded Thomas J. Lawrence) November, 1911, under the provisions of section 2535 of the Revised Statutes of 1909, by filing the following petition:

"Plaintiffs for cause of action state that they are the owners in fee simple of an undivided one-tenth interest each, and together own an undivided six-tenths interest in and to the following described land situate in township twenty-three (23), range thirty-four (34), McDonald county, Missouri, viz.: The southeast quarter of the southwest quarter of section twenty-three (23), and a portion of the southwest quarter of the southeast quarter of section twenty-three (23), described as follows: Beginning at the northwest corner of said last-mentioned forty and running thence east to a point six (6) rods west of the northeast corner of said forty; thence east 22¾ degrees south to the east line of said forty; thence south to south line of said forty; thence west to the southwest corner of said forty; thence north to place of beginning. Also the northwest quarter of the northeast quarter of section twenty-six and and the northeast quarter of the northwest quarter of said section twenty-six excepting the following described portion, viz.: Beginning at a point sixty-one (61) rods north of the southwest corner of said last-mentioned forty and running thence east to a point six (6) rods west of the northeast corner of said forty; thence east twenty (20) rods; thence north twenty-five (25) rods; thence northwesterly to place of beginning.

"That plaintiffs acquired said land by descent from their father, Samuel Ledford, who died intestate about the * * * day of * * * owning said land in fee simple at the time of his death and leaving plaintiffs and five other descendants as his only heirs at law.

"That the defendants are now in possession of said land and claim to own the whole thereof in fee simple, and that their claims are for that reason adverse to the claims of plaintiffs.

"That plaintiffs have no knowledge upon what defendants base their pretended claim of ownership to the whole of said land.

"Wherefore plaintiffs ask the court to ascertain and determine the rights, titles, and interest of the respective parties in and to said land and to by its judgment define and determine the same, and that plaintiffs may be adjudged to be the owners of an undivided one-tenth interest each, in fee simple, and for costs and such other and further relief as the court may deem just and proper in the premises."

Lawrence answered by disclaimer. The two Ledfords answered admitting their possession under claim of title in fee simple as tenants in common with each other only and adversely to plaintiffs. They further answered that they derived their title under a deed from Samuel Ledford duly recorded. Neither Joseph Ledford nor Cecil Ritter was a party.

The original deed from Samuel Ledford and wife under which the defendants claim was introduced in this case. This deed contained covenants of seizin and general warranty, was dated April 27, 1904, and the conveying clause is as follows:

"That the said parties of the first part, in consideration of the sum of one dollar to them paid by the parties of the second part, the receipt of which is hereby acknowledged, do by these presents grant, bargain and sell, convey and confirm unto the said parties of the second part, their heirs and assigns, the following lots, tracts, or parcels of land lying, being and situate in the county of McDonald and state of Missouri, to wit: All of southwest part of southeast of southwest ¼ and south part of southwest of southeast ¼ all in section number twenty-three (23), township twenty-three (23), range thirty-four (34). Also northwest ¼ of northeast ¼ and north half northeast ¼ of northwest ¼ all in section numbered twenty-six (26), township twenty-three (23), range No. thirty-four (34), containing in all one hundred and sixteen acres, more or less. This deed is made with the understanding that the aforesaid Samuel Ledford and Nancy Ledford shall have all controlling power of the above-described premises during their lifetime and at their death then the title is to pass to parties of the second part."

It was duly acknowledged and recorded. The judgment is as follows:

"That Thomas J. Lawrence has no title, estate, or interest in any of the land above described, and that he be discharged with his costs in this cause incurred.

"That Mary E. Ledford and Easter M. Ledford are the sole owners in fee simple, each owning an undivided one-half interest therein as tenants in common of the following described lands situated in section twenty-six (26), township twenty-three (23), range thirty-four (34), McDonald county, Missouri, viz.: The northwest quarter of the northeast quarter and the north half of the northeast quarter of the northwest quarter. And that the plaintiffs have no estate, title, or interest therein.

"That plaintiffs Rela Ann Wimpey, James N. Ledford, M. C. Langford, Ann Krause, Austin C. Ledford, and Alfred A. Ledford, and defendants Mary E. Ledford and Easter M. Ledford are each the owner in fee simple, absolutely, of an undivided one-tenth interest each in the lands below described, being seized as such as tenants in common along with Cecil Ritter and J. F. Ledford, who also own an undivided one-tenth interest therein, said land being described as follows, viz.: The southeast quarter of the southwest quarter of section twenty-three (23), and the following described portion of the southwest quarter of the southeast quarter of section twenty-three (23), viz.: Beginning at the northwest corner of said last-mentioned forty-acre tract and running thence east to a point six (6) rods west of the northeast corner of said forty, thence east 22¾ degrees south to the east line of said forty, thence south to the southeast corner of said forty, thence west to the southwest corner of said forty, thence north to place of beginning. Also the south half of...