Woerheide v. Kelley

• Decision Date: 16 June 1922
• Docket Number: No. 22775.,22775.
• Parties: WOERHEIDE et al. v. KELLEY et al.
• Court: Missouri Supreme Court

243 S.W. 158

WOERHEIDE et al. v. KELLEY et al.

No. 22775.

Supreme Court of Missouri, Division No. 1.

June 16, 1922.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

Partition by Anna W. A. Woerheide and others against Joseph M. Kelley and others, in which the defendant Kelley claimed full ownership of one tract of land sought to be partitioned. From a judgment for partition of both tracts of land in accordance with the petition, defendant Kelley appeals. Affirmed.

Randolph Laughlin, of St. Louis, for appellant.

Henry S. Caulfield and W. W. Henderson, both of St. Louis, for respondents.

GRAVES, J.

Action in partition. Plaintiffs aver that Anna W. A. Woerheide, Clara A. Woffington, Rosalie Anspach, and defendant Joseph M. Kelley, are seized as tenants in common of two certain tracts of land in the city of St. Louis; that Caroline A. Kelley died seized of such lands, and left the first three above mentioned as her only heirs, and defendant Joseph M. Kelley as her widower. For the first three above named, they claim an undivided one-sixth interest, and to Joseph M. Kelley they concede an undivided one-half interest. As to defendant Charles Joseph Ryan, alias Charles Joseph Anspach, the petition charges:

"Plaintiffs further state that said defendant Charles Joseph Ryan, alias Charles Joseph Anspach, claims to be a son of Charles Henry Anspach, a deceased brother of said Caroline A. Kelley, deceased, and claims that he is entitled to a one-eighth share in said lands, which claims the plaintiffs dispute and deny, but make the said Charles Joseph Ryan, alias Charles Joseph Anspach, a party hereto, so, if he has any right, title, or interest in the said premises, that the court may determine the same as to the court may seem meet and proper."

As to parcel No. 2 on the lands involved, the petition avers:

"That said Caroline A. Kelley during her lifetime acquired the land and improvements thereon above designated as `parcel No. 2' subject to a deed of trust made by a former owner of said parcel No. 2, namely, one Vincent A. Chinberg and Marie, his wife, who conveyed said parcel No. 2 to defendant Charles E. Anderson as trustee to secure to defendant Rudolph A. Buermann the payment of one principal note in the sum of $4,500 and six certain interest notes in said deed of trust described; the said defendant Charles H. Anderson, as trustee taking legal title to said parcel No. 2 with power to sell the same for Payment of said notes.

"Plaintiffs further state that said Caroline A. Kelley during her lifetime paid to the holder thereof said principal note for $4,500 and all interest on the debt evidenced thereby, and thereby paid and satisfied said deed of trust incumbering parcel No. 2, but defendant Joseph M. Kelley, who acted as agent for his wife in the matter of such payment and satisfaction, nevertheless wrongfully and fraudulently retained possession of said deed of trust and principal note, and refrained from causing the same to be released and satisfied of record, and has ever since held and now holds the possession thereof, falsely, wrongfully, and, fraudulently claiming that the same belong to him individually and have not been paid or satisfied. That said deed of trust and note constitute a cloud on the title of said parcel No. 2, and should be surrendered and delivered up by said Joseph M. Kelley, and canceled, and said parcel No. 2 should be released from said cloud."

To this petition defendant Kelley filed a demurrer, but, inasmuch as he answered over after such demurrer was overruled, the demurrer plays but little part in the case Kelley's answer reads as follows:

"Now comes the defendant Joseph M. Kelley, and for his answer to the amended petition filed herein admits that he is the owner of an undivided one-half interest in parcel No. 1, described in said amended petition, and that Caroline A. Kelley, his deceased wife, died seized of the legal title to the land described in parcel No. 2 of said petition, subject to the deed of trust thereon, and this defendant denies each and every other and further allegation in said amended petition contained.

"Further answering, this defendant alleges that he purchased said land described as parcel No. 2 with his own money, and took title thereto in the name of his said deceased wife for the sole purpose of preventing a merger of the remainder interest with the interest represented by the deed of trust, when he should ultimately acquire the same, to the end that, as the holder of said deed of trust, he might be able to use the same as collateral to secure loans from time to time, which he could not do with the record title standing in his own name. That his said deceased wife held the legal title to said remainder interest as trustee of a resulting trust, whereof this defendant was and remains the beneficiary, and that the parties plaintiff have no right, title, or interest therein. ["Further answering, this defendant alleges that the plaintiffs have wrongfully combined, conspired, and confederated together to cheat and defraud their nephew, Charles Joseph Anspach, out of his interest as lawful heir of the said Caroline A. Kelley, and of his aunt, Mary Ashmead, and of divers and sundry other relatives who lived and died in Philadelphia, Pa., or in the vicinity thereof; that this suit is but one of a series of suits brought by them in aid and furtherance of such wrongful conspiracy; that in at least one of said suits, pending between plaintiffs and the defendant Charles Joseph Anspach, in a court sitting in Philadelphia, and having competent jurisdiction of the parties, subject-matter, and the issue, it had been finally determined and decided, prior to the filing of said amended petition, that said Charles Joseph Anspach was the lawful son of Charles Henry Anspach, a deceased brother of said Caroline Kelley, deceased, and also of plaintiffs Anna W. A. Woerheide, Clara A. Millington, and Rosalie Anspach; that notwithstanding such final decision, and notwithstanding the estoppel thereof resting upon plaintiffs as parties thereto, and in furtherance of such wrongful conspiracy, said plaintiffs have wrongfully sought to conceal and suppress from the court the existence, rendition, and effect of such final decision, and have knowingly, willfully, wrongfully, fraudulently, and falsely disputed and denied the heirship of their said nephew, and have knowingly, willfully, wrongfully, falsely, and fraudulently sued him under the false and fictitious name of Ryan, and have done so in aid and furtherance of said wrongful conspiracy. Wherefore this defendant shows the court that plaintiffs do not come into court with clean hands, and are therefore disentitled to any relief herein.

"And as a further plea of unclean hands, this defendant shows the court that plaintiffs, because defendant refused to become a party to their unholy alliance against their said nephew, Charles J. Anspach, have sought to overwhelm this defendant with a flood of litigation, and to that end have wrongfully cited him on the false charge of concealing assets of his deceased wife's estate, and have haled him before the probate court of the City of St. Louis on six several occasions, and have wrongfully challenged, disputed, and resisted, for more than one year last past, his right to personal assets belonging to him, and kept in the joint safe deposit box of himself and his deceased wife, and have wrongfully filed divers and sundry motions against him, and sought to have him increase his bond, and sought to have him removed as administrator of his deceased wife's estate, and have compelled him to use the moneys, funds, and credit of said estate in resisting their unrighteous litigation, for the malicious purpose of thereby compelling him to squander his half interest in his deceased wife's estate, in the mere effort of asserting and defending his legal rights. That this suit is but one of a series of suits brought in aid and furtherance of said conspiracy of persecution.]

"This defendant further states that he purchased and acquired with his own moneys and with his own checks the notes secured by deed of trust referred to in plaintiff's said petition, and long remained the owner and holder thereof. Wherefore this defendant prays that this unrighteous suit may be dismissed and denied, and that the costs thereof may be assessed against the conspirators who appear as parties plaintiff thereto."

That portion of the answer in brackets, as above indicated, was the subject of a motion to strike out, filed by plaintiffs. The motion was sustained. Reply was a general denial. Motion of Kelley for a trial by jury was overruled.

The judgment of the court is quite long, but it will suffice to say that it found against the plaintiffs as to the interest of Charles Joseph Anspach, and allowed to him and Anna W. A. Woerheide, Clara A. Woffington, and Rosalie Anspach each an undivided one-eighth interest in both tracts of land, and to defendant Joseph M. Kelley a one-half interest. The court found against Kelley as to the deed of trust claim, pleaded both in petition and answer. As to this point the finding of the court was:

"The court doth further find that said Caroline A. Kelley during her lifetime acquired the land and improvements thereon above designated as `parcel No. 2' subject to a deed of trust made by one Vincent A. Chinberg, a former owner of said parcel No. 2 and Marie Chinberg, his wife, who conveyed said parcel No. 2 to defendant Charles H. Anderson as trustee to secure to defendant Rudolph A. Buermann the payment of one principal note in the sum of $4,500 and six certain interest notes in said deed of trust described; the said defendant Charles H. Anderson, as trustee, taking legal title to said parcel No. 2 with power to sell the same for payment of said notes.

"The court doth further find that said principal note for $4,500 and said interest notes and all interest on the debt...