185 Mo. App. 625 | Mo. Ct. App. | 1914
This is an appeal by the defendants from a decree rendered on May 2, 1914, in the circuit court of Butler county whereby defendants
It is necessary to give a brief history of the relationship of the parties and their relations with reference to the land on which the timber in dispute grows ih order that appellants’ theory as to the errors assigned may be made plain.
The plaintiff is a resident of Butler county, and is the general agent, manager, and attorney of the Brooklyn Cooperage Company and of the Great Western Land Company, two corporations. Prom the record it appears that he had a free hand in managing their properties in Missouri. The defendant cooperage company (appellant) is a corporation engaged in the manufacture of products made from white oak-timber. George W. Kinnard was an agent in the employ of the H. D. Williams Cooperage Company, and H. D. Williams was an owner of considerable stock and an officer in said company.
Some years prior to the institution of this suit, there was a controversy between the Brooklyn Cooperage Company and Charles R. Heike and Arthur Donner over the right of the H. D. Williams Cooperage Company and H. D. Williams to cut the white oak timber on the land owned hy the Brooklyn Cooperage Company and Heike and Donner. The Brooklyn Cooperage Company and Heike and Donner instituted a shit in the United States District Court for the eastern district of Missouri seeking to enjoin H. D. Williams and the H. D. Williams Cooperage Company from cutting the white oak timber on the land involved in the case now before us as well as that on other lands.' An answer was filed by the defendants in that suit setting up certain claims and rights to the timber. While that suit was pending, a compromise was reached betwen the parties and a consent decree was entered by the court giving the defendants
After that settlement was made and such consent decree entered, a suit was brought against the Great Western Land Company, the successor to the title of the Brooklyn Cooperage Company, and the H. D. Williams Cooperage Company and H. D. Williams by Margaret A. Weirman and Laura Weirman Burnes, and another suit was brought by Mary J. Harston against the Great Western Land Company. The plaintiffs in those two suits set up a claim to the title to the land alleged to be paramount to that of the defendants therein. Those suits were dismissed by the plaintiff therein and they executed deeds conveying- their interests in the land to the plaintiff in our case, William N. Barron. It is shown that for
The plaintiff, now claiming title through the deeds conveying the land subsequent to the consent decree entered in the United States District Court, made after a compromise agreement between the parties, seeks in this action to restrain the defendants herein from interfering with the timber notwithstanding any rights they acquired under the consent decree of the United States District Court.
The defendants claim, first, that the title acquired by Barron from the Weirmans and Mary J. Harston was not paramount to the title owned by the Brooklyn Cooperage Company and the Great Western Land Company and Heike and Donner, and, for that reason,' that he has no right to interfere with them in exercising their rights acquired under the consent decree. Second, that Barron’s title, if any, was acquired by him as agent, attorney or trustee for the Great Western Land Company and the Brooklyn Cooperage Company, and that said corporations owned whatever he bought, and that they cannot, nor can he, being their agent and attorney, interfere with the defendants by reason of such consent decree even if they did acquire a paramount title to the title they claimed to own when the consent decree was entered. Third, that, as Barron claimed in the bill in this case, the white oak timber was the chief value of the land,
Whether plaintiff has title to the timber is of course a vital question in determining whether he can maintain this action. It will only be necessary to discuss the alleged flaw in his title. Without going into detail it can be generally stated as follows: Plaintiff has a title running through conveyances from the United States down to a deed made to I. W. Gr. Weir-man in 1870 and.from the Weirman heirs to the plaintiff, and from the United States down to one Johnson in 1885, and from his grantees, through Mary J. Harston, to the plaintiff. In 1890' a suit was brought by the F. Gr. Oxley Stave Company and others against Butler county and a large number of .other defendants for the purpose of setting aside and canceling many deeds to lands comprising a large tract in said county, including the land on which the timber grows with which we are concerned in this appeal. Among some one hundred defendants in that case was J. W. Gr. Weirman and also the grantor in the deed to Mary J. Harston. It is uncontroverted that the order of publication was void as it described no lands. That action was brought against one hundred or more defendants who were claiming some interest in the land. The petition therein also set out by name some fifty or seventy-five persons who it alleged to be nonresidents of Missouri, among which number is found
The defendants herein contend that the grantors of the plaintiff were barred by that decree of the circuit court which was reversed by the Supreme Court for the reason that-the order of reversal would only operate as to those defendants who actually appealed. This might be true if it were shown that such grantors ever entered their appearance and became bound by the decree of the circuit court at St. Louis. But defendants contend that there was an appearance in the suit begun in 1890 by the F. G\_ Oxley Stave Company and others because the order entered by the clerk as to one of the motions for a new trial filed by an attorney for some of the defendants therein who did answer, naming them, recited that the motion was filed for those defendants “and other defendants,” and defendants argue that thereby all the
As to the Weirman title it will be noted that the publication and suit was brought against J. W. G. Weirman and not /. W. G. Weirman to whom the land had been previously deeded. But aside from that, we are unable to agree with defendants’ contention that Weirman or Johnson entered their appearance merely on account of the recitation that “other defendants” had filed a motion for a new trial, and this because all the papers and proceedings including the solemn declaration in the decree itself discloses that neither Weirman nor Johnson ever entered an appearance in that case. They are therefore driven to the extremity of having us hold that that solemn entry, “and other defendants,” contained in the clerk’s.entry on the motion for a new trial brings into court those'parties whereas every other record shows them to have been absent.
It is held in -the case of Mullins v. Rieger, 169 Mo. 521, 70 S. W. 4, that a general answer by the defendants without naming them cannot be made to include defendants who have not been duly brought into court by process and who' have not specially entered their appearance. There were other defendants in our cases who were personally served. The only entry on which defendants can insist that Weirman and Johnson entered their appearance is the minute entry by the clerk made when the motions for new trial were filed by some of the defendants who were'named therein. Besides, the case of F. G. Oxley Stave Co. v. Butler County and others, when it reached
Appellants cite the case of Clark v. Brotherhood of Locomotive Firemen, 99 Mo. App. 587, 74 S. W. 412; Rector and Kennerly v. Circuit Court for St. Louis County, 1 Mo. 607; Schell v. Leland, 45 Mo. l. c. 293; and Louthan v. Caldwell, 52 Mo. 121. Those cases do not sustain the appellants’ contention as an examination of them shows there was an appearance actually entered by the parties in filing certain motions, and in some of the cases it is specifically pointed out that the motions were separately filed. These cases are far from being authority that a minute made by the clerk, under the facts with reference to the pleadings and proceedings as have been detailed in this case, would, by the recital therein of “and other defendants,” enter the appearance of nonresident, defaulting defendants. We must therefore hold that so far as this record is concerned the plaintiff has established title to the trees that he seeks to enjoin the defendants from cutting.
Appellants’ second contention is that the consent decree entered in the United States District Court did so bind the Brooklyn Cooperage Company, the Ghreat Western Land Company, Heike and Donner and their privies and representatives as to make any paramount title that they acquired inure to the benefit of the appeallants herein.
It is well-settled law that if a general warranty deed conveying a fee simple title is made by a grantor when he in fact has no title or has a defective title and he subsequently acquires good title, the subsequently acquired title will inure to the benefit of the grantee in such deed. It is also well-settled that the grantor in an instrument other than one carrying a covenant of warranty will not on the acquisition by him of a paramount title be estopped from setting it up as against his grantee in a deed made prior
It is therefore necessary to look to the consent decree which was entered by the United States District Court. If such decree can be construed so as to warrant title in the timber to the appellants, then the Brooklyn Cooperage Company and the Great Western Land Company when they acquired the Weir-man and Harston titles would do so for the benefit of the appellants. On an examination, however, of the memoranda of compromise entered into between the parties leading up to the consent decree we find the following provision (in exhibit B): “With regard to the lands to be selected by H. D. Williams Cooperage Company, the complainants do not warrant the title -to said land or the timber thereon, but the defendants and each of them shall and will protect and save harmless the complainants and each of them and their assigns from all claims by third persons for damages in excess of one and 50/100 dollars ($1.50) per cord, arising out of cutting done by the H. D. Williams Cooperage Company on the lands selected by it.” And there is nothing in the decree that would indicate that the title to the timber which the appellants were permitted to cut was warranted to be in the Brooklyn Cooperage Company and ITeike and Donner. This provision in the agreement on which the consent decree was entered disclosed that there was no warranty whatever made by the complainants in that suit as to the title of the land on which the timber was growing. We can therefore see no reason why the Brooklyn Cooperage Company and Heike and Donner or their grantees and representatives would not be permitted to buy the title to the land and enforce their rights under such acquired title if it was the paramount title. Certainly the Wei'rman heirs
The foregoing discussion disposes of appellants’ third contention.
We cannot agree with appellants’ contention that injunction will not lie in this case. Section 2534, Re: vised Statutes 1900, expressly gives the remedy of injunction to one whose property, real or personal, is threatened with irreparable injury and to prevent the doing of any legal wrong when in the opinion of the court an adequate remedy cannot be afforded by an action for damages. The evidence in this case shows .that the appellants were cutting this timber owned by the plaintiff and were threatening to cut it under the terms of the consent decree. It is also •shown in evidence that this character of timber is of very slow growth, and also that it would require great expense to the plaintiff to watch the timber and keep an account of such as the defendants saw fit to cut. It is held in the case of Palmer v. Crisle, 92 Mo. App. 513, as follows: “The law of today does not require that a person in plaintiff’s situation shall submit to the stripping of his timber-land of its forest trees, and then attempt to make his loss good by action for damages. The nature of the property involved and the inconvenience of suing for continuous trespasses, as charged in this case, constitute a basis for equitable relief, long recognized in this State under the statute governing the use of the writ of injunction.” It is held that injunction is available to restrain repeated and continuous trespasses even though the wrong may not be irreparable and the wrongdoer may be solvent. [See Turner v. Stewart, 78 Mo. 480; Sills v. Goodyear, 80 Mo. App. l. c. 132; Lytle v. James, 98 Mo. App. 341, 73 S. W. 287; and Hobart-Lee Tie Co. v. Stone, 135 Mo. App. 438, 117 S. W. 604.] The case of Powell v. Canaday, 95 Mo. App. 713, 69 S. W. 686, cited by
Appellants complain of the overruling of an objection to a question put to Fred D'ewey in a deposition as follows: “State who were the sole heirs of William S. Dewey, April 9, 1883.” The objection was that the question called for a conclusion. The court overruled the objection by stating that “he does state the relations and I think it is competent.” The question was asked after the deponent had testified that William S. Dewey died on May 16, 1881, and that he left two brothers and a sister surviving- him, none of whom left any children surviving them. In plaintiff’s proof of title, William S. Dewey was one of the persons through whom plaintiff sought to- show his chain, and the deed made by Richard S. and Henry A. Dewey and Harriet D. Rogers dated December 3, 1885, to James J. Johnson conveying all the interest they had in and to the’ land therein described, conveyed the interest that the grantors therein acquired as the brothers and sister and heirs at law of. William S. Dewey. The question called for a conclusion, but under the circumstances detailed the action of the court could not be held to be reversible error. In an equity case the admission or exclusion of evidence is rarely reversible error on appeal. [Hanson v. Neal, 215 Mo. 256, 114 S. W. 1073.]
The plaintiff showed title to the timber from beginning with deeds from Butler county in 1869. The defendants claim rights to the timber through á deed from Butler county in 1899. There is nothing in this record divesting the title out of the grantees and their line beginning with the deed of 1869. Wé therefore
