Schneider v. Schneider , 284 Mo. 314 ( 1920 )

From appellants' brief we borrow an outline of the issues. We have stricken out unnecessary words, and added words and sentences where we deemed it advisable. The statement thus modified follows:

"This is an action under Section 2535, Revised Statutes 1909, to determine and quiet title to lands described in the petition of plaintiffs situated in Franklin County, Missouri.

"One Martin Schneider died intestate. He left surviving him a widow, the plaintiff, Magdalena Schneider, and the following named children and heirs at law, to-wit: A daughter, the plaintiff, Lena Seidner, and the following named sons, the defendants, namely, Alex. Schneider, Frank Schneider and Martin Schneider, Jr.

"The plaintiffs in their petition alleged that Martin Schneider, Sr., died seized and possessed of certain real estate situated in Franklin County, Missouri, being part of Sections 8 and 9 south of a slough, with all accretions formed thereto on the east side in said section till to the Missouri River, and a part of Section 16, together with all accretions formed thereto to the east till to the Missouri River, embracing all land on the north side of the center line running east and west through said Section 16, and continuing east through said Section 15 in the same manner, all in Township 45, Range 3 west.

"The plaintiffs further alleged in their petition that Martin Schneider, Sr., died leaving debts unpaid to a considerable amount; that the plaintiff Magdalena Schneider is the duly and legally appointed and qualified and acting administratrix of the estate, and that it will be necessary in order to pay the debts of the estate to sell a part of the real estate of the decedent.

"The plaintiffs in their petition claimed that Magdalena Schneider, as widow, has an interest in said real estate, and that subject to the payment of debts the plaintiff Lena Seidner and the three defendants owned the real estate in plaintiffs' petition described, in equal parts.

"A plat of the lands was introduced in evidence, as follows:

[EDITORS' NOTE: PLAT IS ELECTRONICALLY NON-TRANSFERRABLE.]

"This clearly shows the lay of the land. All of the lands described in plaintiffs' petition are south of the slough shown on the plat above referred to, the general direction of the slough being from west to east, and the lands are also all west of the Missouri River, as shown on the aforesaid plat, the course of the river being from the northwest to the southeast.

"By a reference to the judgment and decree rendered by the trial court, it will be noted that the trial court in describing the lands as shown on the aforesaid plat and situated north of the center line of Section 16, and west of the Missouri River, and south and east of the two sloughs shown on the plat, denominated said tract of land as tract No. 3.

"The lands shown on the plat above referred to as being situated north of the center-section line of Section 16 and south and west of the two sloughs shown on the plat, and east of the line marked `Old High Bank,' were designated and denominated by the court as tract of land No. 2, and all those lands described in plaintiffs' petition lying west of the line marked `Old High Bank,' on the plat hereinabove referred to, were designated and denominated by the court as tract of land No. 1. For convenience we have marked the tract numbers on the plat. The defendants in their amended answer as to tract of land No. 1, admitted the relationship of the parties as alleged in plaintiffs' petition, and as to tract of land No. 1, admitted that the plaintiff Magdalena Schneider had a dower interest therein, and that subject to the payment of the debts of the decedent the plaintiff Lena Seidner and the defendants owned said tract of land No. 1.

"As to tracts of land Nos. 2 and 3, the defendants in their amended answer alleged that said tracts of land Nos. 2 and 3 had formed in the old bend of the Missouri River by the recession and abandonment of the waters thereof, or by the formation of an inland, or islands, in said river; that under the Act of the Legislature of this State, approved April 5, 1895, said tracts of land Nos. 2 and 3 became the property of Franklin County, Missouri, and that the defendants by patent dated the 13th day of May, 1915, and issued by Franklin County, Missouri, had become the owners of said lands.

"Defendants in their amended answer further alleged that during the lifetime of Martin Schneider, Sr., Franklin County brought a suit in ejectment against Martin Schneider, Sr., for the possession of tracts of land numbers two and three, and that after said suit had been instituted the said Martin Schneider, with the full knowledge and consent of the plaintiff, Magdalena Schneider, actively induced the defendants to purchase tracts of land numbers two and three from Franklin County, and to pay to said county the sum of $1391.37, the purchase price for the same, and that Martin Schneider, in person, and by his counsel, with the full knowledge and consent of the plaintiff Magdalena Schneider, caused and permitted the County Court of Franklin County, Missouri, to issue patents to said lands to defendants, the defendants paying therefor, and that Martin Schneider, Sr., and the plaintiff Magdalena Schneider, put defendants in the possession of said lands, tracts two and three, as owners thereof, and that the said Martin Schneider and Magdalena Schneider fully acquiesced in and ratified said sale, and that the defendants in good faith and without notice of any adverse claim of Martin Schneider or his wife, entered into the possession of said lands after having bought the same, and made valuable and permanent improvements thereon, and under those facts as pleaded the defendants claimed that Magdalena Schneider and Lena Seidner, who claim under Martin Schneider, Sr., are estopped from claiming any interest in or title to tracts of land numbers two and three.

"The defendants alleged in their answer that Martin Schneider, Sr., owed the three defendants a large sum of money for work and labor done, and in order to compensate them for work and labor, he consented in compromising the ejectment suit above referred to that the patents might be issued to his sons, they paying therefor.

"The reply controverted the facts as pleaded by the defendants in their answer."

By its judgment the court found for defendant as to tract number three, and for the contentions of plaintiffs as to tract number two. Defendants disclaimed interest in tract number one, except as heirs. Plaintiffs did not appeal, and therefore abided the judgment as to tract number three. The dispute here is as to tract number two, and as to some equitable adjustments made in the decree, which, if necessary, will be noted in the opinion. This outlines the case.

I. It is suggested that this case is one at law, and not in equity. This suggestion comes from appellant, and is no doubt urged because the trial court granted certain equitable relief. If a case at law, the judgment is erroneous, and if in equity it may or may not be erroneous, depending upon the issuesSuit in made and evidence adduced. It is important, however, toEquity. locate upon which side (legal or equitable) of the trial court the case belonged. It was tried without the intervention of a jury.

The petition is an ordinary petition under section 2535, Revised Statutes 1909, to determine and declare title. Is the action in equity per force of the answer? The answer (in one count) pleads estoppel in pais, and joins the plaintiff in asking the court to ascertain and determine the title. The courts have not been uniform in classifying estoppel in pais, but we think when considered in cases touching the title to real estate it has generally been classified as purely equitable. In 10 R.C.L. p. 841, sec. 147, it is said:

"At common law estoppel is founded on deeds and judicial records, but in equity estoppel arises from matters in pais. At common law matter in pais was mere evidence. It is now, however, generally held that an equitable estoppel or estoppel in pais may be enforced in a court of law as well as in equity, though in some jurisdictions, and generally in states where the legal and equitable remedies are not blended, it is still the rule that title to land cannot be affected in a court of law by the assertion of an equitable estoppel and that in such cases resort must be had to a court of equity."

We have so recognized it in this State in an ejectment suit. We mean to say that we have classified the defense as one in equity. In Clyburn v. McLaughlin, 106 Mo. l.c. 524, McFARLANE, J., said:

"The question for first consideration is, whether the plea of estoppel, if sustained by the proof, constitutes a good defense to the action of ejectment. It is well settled in this State that under our Code of Civil Procedure a defendant, in an action of ejectment, may by answer interpose an equitable defense, and that his equities may be tried and determined directly in that action, without having to resort to an independent suit in equity."

In the later case of Ming v. Olster, 195 Mo. l.c. 472, VALLIANT, J., said:

"A plea of estoppel in pais is not necessarily a matter of equity jurisdiction; it is cognizable also in courts of law. In Bigelow on Estoppel (5 Ed.), p. 557, it is said: `Though still called "equitable estoppel," it is as fully avoidable at law as in equity.' In 16 Cyc. L. P. 682, it is said: `The term [estoppel in pais] was borrowed originally from equity and hence denominated "equitable estoppel." Equitable estoppels are so called not, however, because their recognition is peculiar to equitable tribunals, but because they arise upon facts which render their application in the protection of rights equitable and just. The doctrine is recognized in the courts of common law just as much as in courts of equity, although it was at first administered as a branch of equity jurisprudence.' Under some circumstances, however, full effect cannot be given to the estoppel by a mere judgment at law, for example, where it becomes necessary to fill a gap in record title by a decree vesting the title."

In Illinois we find the pronouncement made by WALKER, C.J., in Mills v. Graves, 38 Ill. l.c. 464, thus: "And a recovery was opposed upon the ground that Ellis and those claiming under him, were estopped by matter in pais from asserting title. The doctrine of estoppels in pais, at this day, seems to be that they are equitable and not legal, when they relate to real property. An estoppel is defined to be an impediment or bar to the assertion of a right of action arising by a man's own act, or where he is forbidden by law to speak against his own act. It extends to and binds privies in blood, privies in estate and privies in law." The case was an action in ejectment.

To like effect is the rule stated by PERLEY, C.J., in Horn v. Cole, 51 N.H. l.c. 289: "The ground on which a party is precluded from proving that his representations on which another has acted were false is, that to permit it would be contrary to equity and good conscience. This has been sometimes called an equitable estoppel, because the jurisdiction of enforcing this equity belonged originally and peculiarly to courts of equity, and does not appear to have been familiarly exercised at law until within a comparatively recent date; and, so far as relates to suits at law effecting the title to land, I understand that in England and in some of the United States the jurisdiction is still confined to courts of equity."

In an action to determine title, the Supreme Court of the State of Washington, in Carruthers v. Whitney, 56 Wn. l.c. 333, said: "Estoppel is an equitable proceeding, or speaking more accurately perhaps, it is the equitable result of a wrongful proceeding or act, a reliance upon which would, in the absence of an estoppel, work an injustice to an innocent person. At the common law estoppel was founded on deeds and records of courts, but estoppel in equity is estoppel in pais. The principal now applies because it has been found that the common law rule was too narrow and inadequate for the attainment of justice under the multiplied transactions of modern times, and hence the equitable estoppel of the present day. The well-understood idea of equitable estoppel is that, where a person wrongfully or negligently by his acts or representations causes another who has a right to rely upon such acts or representations to change his condition for the worse, the party making such representations shall not be allowed to plead their falsity for his own advantage."

It is true that a great many cases rule that estoppel inpais, or equitable estoppel, is no defense in a law action, as in ejectment suits. For the cases see note to Kenny v. McKenzie, 49 L.R.A. l.c. 777. But at page 778 of the same volume the learned annotator says: "Under reformed procedure equitable estoppel is available as a defense to an action of ejectment. [Clyburn v. McLaughlin, 106 Mo. 521, 27 Am. St. 369, 17 S.W. 692; Corkhill v. Landers, 44 Barb. 218; Moore v. Brownfield,10 Wash. 439, 39 P. 113.] And under laws providing that there shall be but one form of action for the administration of both law and equity, the defense of equitable estoppel is available — in an action of ejectment (Duke v. Griffith, 9 Utah, 469, 35 P. 512); — in an action to recover dower (Hilton v. Sloan, 37 Utah, 359, 108 P. 689). So, the defense of equitable estoppel is available in an action of ejectment under the Administration of Justice Act, which provides that `for the more speedy, convenient, and inexpensive administration of justice in every case, the courts of law and equity shall be, as far as possible, auxiliary to one another respectively' (Stevens v. Buck, 43 U.C.Q.B. 1). Kenny v. McKenzie is in harmony with these decisions."

We have the code, or reformed, practice in Missouri. Under it we have always ruled that a party can made all the defenses he has in the one action, whether such defenses be what were theretofore denominated legal or equitable. Section 2535, Revised Statutes 1909, contemplates that such may be done, and Section 2535 says that the suits under Section 2535, shall be tried in all respects under "the code of civil procedure."

And in Lee v. Conran, we ruled that whether an action to determine title was equitable or legal was dependent solely upon the issues raised. If those issues were equitable, the case was in equity; and if the issues were legal, the action was at law.

We therefore rule (1) that estoppel in pais was a proper defense to the action; (2) that at least in cases involving title to land, such defense in an equitable one, and (3) that the present case is to be reviewed here as one in equity, and not as one at law.

II. The trial court held that as to tract No. 2, as shown by the plat, the defendants got no title by the deed from the county, because tract No. 2 was accreted land to tract No. 1. The court also held that tract No. 3 was not accreted lands, and that the deed or patent from the county gave defendantsAccretion. absolute title. It is extremely doubtful whether the evidence will justify the finding of the trial court to the effect that tract No. 2 was accreted lands, but with the view that we have of the case on the matter of estoppel in pais, we need not discuss that question, and the evidence thereon. We think plaintiffs are estopped to assert title to either tracts No. 2 or No. 3, and this question we take next.

III. The trial court found that the plaintiffs were not estopped. The plaintiffs are the widow and daughter of the Martin Schneider, deceased. The three defendants are the sons of deceased. In 1913 the said Martin Schneider acquired all the land in the three several tracts, as shown on the plat. The lands in tract No. 1 were conveyed to him by warranty deeds. The lands in tracts No. 2 and 3 by quit-claim deeds. These two tracts were either accreted lands, or lands formed within the terms of Section 8032, Revised Statutes 1909. The process of formation began in 1875. If these two tracts (2 and 3) or either of them formed in the way set out in said Section 8032, supra, then they were county lands, for such section reads:

"All lands belonging to the State, not otherwise appropriated under the laws thereof, which have been formed by the recession and abandonment of their waters of the old beds of lakes and rivers in this State, or by the formation of islands in the navigable waters of the State, are hereby granted and transferred to the respective counties in which such lands are located, to be held by such counties for school purposes."

The statute was passed in 1895 and was first construed in Moore v. Farmer, 156 Mo. 33. Franklin County in 1914 had these lands in tracts 2 and 3 surveyed and platted, on the theory that their formation was in the manner designated by Section 8032, supra, and that they belonged to the county. The situation was such in 1913 that Martin Schneider's grantors would only make quit-claim deeds.

In 1914 Franklin County brought suit against Martin Schneider for the lands in tracts 2 and 3, claiming title under the Act of 1895, now Section 8032, Revised Statutes 1909. This suit was compromised by Martin Schneider by him agreeing to pay the county $2.50 per acre for all these lands, aggregating in all the sum of $1391.37 and getting from the county a patent to the lands. When the time came for the issuance of the patent and the payment of the money, Martin Schneider, the father, appeared before the County Court, and asked that the patent be issued to the three sons, these defendants. It is conclusively shown that the $1,391.37 was paid by the sons, and that the father desired to have them get the lands. The wife, now the widow, pending this suit of the county against Schneider, advised him to let the lands go, because, as she said, he was indebted enough then, without going further in debt. In addition to this the widow says that whilst the suit was pending and the compromise under way, she saw a letter from Schneider's lawyer to Schneider, from which she learned that the land was to be deeded by the county to the three defendants. So that she not only advised the husband to let the county have the land rather than pay the money, but knew that the three defendants were contemplating taking the patent from the county and paying the purchase price, and no dissent was made. There is evidence that these boys had worked some years for the father after attaining their majority, and that he wanted them to have the land for that reason. This, however, is not so material. If Martin Schneider, the father, was claiming this land as against these sons, there is no question that he would be estopped. He not only stood by and saw the patent issued to the boys, and the money paid by them, but he expressly acquiesced in it. This would estop him, and at least the plaintiff, Lena Seidner, his daughter. The widow is estopped by her own conduct, if not on the same doctrine of privity which estops the daughter. [Mills v. Graves, 38 Ill. l.c. 464.] As said in this case, in speaking of estoppel in pais. "It extends to and binds privies in blood, privies in estate, and privies in land."

In the early case of Skinner v. Stouse, 4 Mo. l.c. 96, this court said: "The law is that if the owner of property stands by and sees another sell his property and says nothing when he might with propriety speak, he shall not afterwards have the property, much less can he have it when he encourages a person to buy."

This doctrine applies with equal force to those in privity with the person estopped. [Thistle, Trustee, v. Buford, 50 Mo. l.c. 281. See also Stevenson v. Saline County, 65 Mo. l.c. 429; Austin v. Loring, 63 Mo. 19; Raley v. Williams, 73 Mo. 310; Rice v. Bunce, Admr., 49 Mo. 231; Manning v. Coal Co., 181 Mo. l.c. 376; Lumber Co. v. Craig, 248 Mo. 319.]

In this case not only did the father direct the patent to be issued to the boys (now defendants), but the mother advised the father to yield the title to the county, and through the letter spoken of heretofore, knew that defendants were going to invest their money in the land. The defendants not only paid the purchase price, but have made some improvements on the land since. On the whole the plaintiffs are estopped from asserting title adverse to the county's patent to defendants.

As to tract 2, as well as tract 3, the judgment should have been for the defendants.

Judgment reversed and cause remanded with directions to the circuit court to enter up judgment in accordance with the views expressed in this opinion. All concur, except Woodson, J., absent.