*1 of appeals held the court the survivor took all because slie was only living’ one of the class when the testator died. case, exception now
The before us is almost identical with the stepchildren the two named In class were view testator. of the record it is evident the testator intended to leave all of property his to his wife and her children. testator had no de- of his own. He with his scendants lived wife and her two children many They years. all remained members the household until death them called one one. correctly judg- is evident the trial .ruled case court and the Bohling Barrett, GG.,
ment is affirmed. concur. foregoing PER opinion C., CURIAM: The by Westhues, adopted the opinion of the court. All the judges concur. City
W. L. and Samuel Appellants, v. Castleberry, Cantrell Municipal Caruthersville, Corporation, and Gordon Wright, Wyman Obye Dillman, L. K. Van Aus Coker, Ahern, John and Ott City, Members dall, Monan, Council said Respondents, (2d) No. 41116 221 S. W. One,
Division June *2 Mayes Henley appellants. Von and Frecl L. for respondents.
Ward & Beeves *3 VAN OSDOL, C. This is an and determine action parcel City, Caruthersville, a'described of land in enjoin interfering defendants use the land plaintiffs’ from enjoin and to threatened condemnation of land. On motion defendants, the trial petition court dismissed the abated cause. Interesting questions appealed. relating Plaintiffs have provisions of (Laws the Civil Missouri, 1943, p. Code of Missouri seq., 353 et seq.) presented. Mo. R. A.S. 847.1 et This court are appellate jurisdiction has ground on the case involves “title Missouri, real estate.” Section V Article Constitution McGaughey’s Estate, Nettleton Bank W. 2d 771. The sought, granted, if directly would affect operate upon title to real estate. grounds alleged the motion to dismiss that are plaintiffs’
matter of action determine title is the same mat ter of a parties pending cause between the same in the Court of Com Cape County mon Pleas of change Girardeau on of venue from County; Pemiscot pending said action inis instituted against plaintiffs defendants in the instant action to possession of parcel recover the identical of land involved action; pending instant said Court of Common *4 27, 1947, Pleas filed October was and the instant action was filed May prior in plaintiffs herein, that the action the as de required action, in were fendants that “under the new civil plead defense, of procedure, code to as counterclaim or cause of in answer in said prior action their suit the pleaded same matters action, present this and that the issues the germane suit are disposed prior and should be of said suit.” hearing of the motion to On dismiss it was admitted that pending then of
prior action said Court Common Pleas was an in.
ordinary action Section R. S. S. A. R.. petition parcel 1534. The states the described of part land is
§ alley. petition and answer in that public case were offered in support the motion. The land described in petition includes present in the action. petition the land involved The answer by possession action stated title in the adverse" for more taxes, years, permit city payment ten from the than to make im- on and the answer provements land; further stated the land “is for by anyone been dedicated alley has never part public and
no asked. relief was But no affirmative purposes.” public affirma- “Appellants say, defendants-respondents In their brief their answer of limitations tively estoppel and statute pleaded and matters plead same ejectment suit, they but now these in the (instant action independent suit matters in other additional ejectment suit after the try title), seven months filed determine ac- petition in the instant Plaintiffs-appellants in their filed.” was City is “vested with negatived respondent have that tion also say, Defendants-respondents further ... or an easement.” fee petition filed in the instant in the (pleaded matters “all which said relief, ground they any cause of for action), action state insofar as they ejectment suit, would constitute pleaded because must be in the -For such con- to that suit.” ‘an or affirmative defense’ avoidance Missouri, rely 40 of the Code on Civil respondents tention Section p. Respondents R. S. A. 847.40. Missouri, 1943, 370, Mo. Laws of § (in action to deter- say, pleaded matters the instant also “If such so a cause action title) respecting property this also state mine same city, equitable against respondent then such mat- grounds relief 847.73) A. (Mo. new R. S. required section 73 of the code ters are in the suit.” pleaded as counterclaim stobject eject- the action in Respondents contend that the matter of try and determine title is land. instant action to ment say plaintiffs-appellants hand matter On other land, land, but ejectment action is not. the instant matter of the determine land, title to the land. title is but respondents contend, required, appellants Were plead, as a of Missouri for affirm Civil Code counterclaim ejectment suit, claim relief, in the their to determine title? ative refer, (“Sections” except indicated, otherwise hereinafter supra.) Missouri, sections Civil Code provides, Section 40 pleading preceding pleading, party
“In to a shall set forth af- satisfaction, award, firmatively accord and assump- arbitration and contributory negligence, discharge in risk, bankruptcy, duress, tion consideration, fraud, estoppel, illegality, injury by failure of fellow license, release, servant, laches, payment, judicata, res statute of limitations, defamation, truth in frauds, waiver, statute of constituting an avoidance or other matter affirmative defense. ” italics.) (Our . . . *5 copy a 8(c) is almost literal Section Section 40 of the Federal 1, Yol. Edmunds, Procedure. See Rules "of Federal Civil Rules of Procedure, 243; 1, Carr, p. Missouri, Vol. Civil Civil Procedure, pp. effect, concede Respondents, nothing 371-2. there in Section italicized, except language we have 40, that tends to support their nothing dealing We find contention. the Federal decisions with 8(c) point Appellants, Rule here. in their answer in the action, pleaded estoppel; their defense limitations and this was in compliance “any 40. the,provision, Section Does other matter constituting defense,” or require avoidance affirmative a defend- simple plead affirmatively ant in his title and ask that title be determined?
The specifically gen matters named Section 40 are those erally recognized pleas of confession and avoidance in common-law pleading, or as constituting new matter a defense under the now re pealed 1939, 928, Section R. S. A. R. S. 928.. The Section 40 § specification makes more detailed of matters in or avoidance af firmative did supra. defense than the Section Carr, Yol. Procedure, 169, p. Missouri Civil plain But it is it is con templated specification the more required detailed of matters to be affirmatively pleaded may not might include all matters which con claim, stitute an avoidance or affirmative defense to and the Section “any makes it clear other” avoidance or affirmative defense, or specified whether in the shall Section, be “set forth affirma tively.” The Section 40 does not party treat with counterclaims. A many separate state defenses as he has. Section If a surely party avail wishes himself of avoidances affirmative de affirmatively 40; fenses he should state them. Section Gerber v. Schutte Co., 354 Mo. W. Inv. 194 S. 2d 25. Section .does treat with counterclaims, however. provides,
Section 73 pleading “A shall claim, state as counterclaim not the sub- ject pending action, filing which at the time of pleading against pleader any opposing party, has if it arises out of the trans- occurrences that is the matter opposing party’s require adjudication claim and does not presence its of third parties acquire jurisdiction.” of whom the court cannot Laws of 377,. Missouri, 1943, p. requires (if
The a claim Section it is within the provisions other Section) to be stated as counterclaim’ “if it out of arises transaction or occurrences that is the matter of opposing party’s claim.” The Section 73 is almost identical with 13(a). Federal Rule The objective discourage separate 73 “is litigations cover
ing
subject matter,
require
adjudication
same
their
in the
’ ’
Bland,
same action.
State ex rel. Fawkes v.
357 Mo. 634, 210 W.
Carr,
Procedure,
2d
Vol.
Missouri
pp.
Civil
525-534. compulsory
provision
counterclaim
is said Rule-13(a)]
[Federal
logically
of bringing
a means
all
related
claims
single
into a
liti
through
gation,
penalty
precluding
the later assertion of
claims, Lesnik v. Public
Corporation,
Industrial
omitted
F. 2d
*6
York, 260
Surety
of New
Co.
v. American
968; American Mills Co.
Equity
former Federal
under
(counterclaim
is word
flexible
con
immediacy of their
occurrences,
upon
much
depending not so
now
view is
This liberal
relationship.
upon
logical
their
nection as
supra;
Corporation,
v.
Industrial
Public
well
Lesnik
established.
The
593, 46 S. Ct.
Exchange, 270 U. S.
New York
Moore v.
Cotton
mean
of broad
are both
“transaction”
and the word
word “claim”
but
form of the action
not refer
ing. The
“claim” does
word
right
party
giving
law
underlying facts combined with
to the
claim. “Transac
on the
remedy
or another based
of one form
be
should
meaning. “Transaction”
broader
a word of still
tion” is
broadly
and circumstances
of
facts
all
to include
construed
Hensley,
(Grue
357 Mo.
claim
the foundation of
which constitute
out
10), “all
and circumstances
page
the facts
592, 210 S. W. 2d
at
’’
Hay
.
.
. arose. Ritchie
injury complained
of which
ward,
page
at
Before the contentions we will examine language stated, an action. As relating “subject matter” of parties to the term subject priorly pending matter of the by respondents the -urged it is of the instant action action in is the same as that say subject matter of both actions is the They determine title. land. action) (or matter “is not
“Subject” of action thing ‘cow,’ can mean but one in what word like ‘horse’ or which may probably rightly placed, applied, it position it be but ever tangible intangible, by things, different applied, different minds to example, For in an circumstances. under the same might arrive at the conclusion that the land alone ejectment one mind subject, action, that its title was the was the of the another wrongful possession subject, was the defendant’s another that things subject. together all constitute still another that these Moffet, action.” McArthur v. All of them are treated’ of language Supreme N. W. 445. of the 564, 128 Court of Wis Wis. only quoted expression as a nice of the variance of mean consin by minds the use ing be intended different of the term which (or “subject action”), matter of the “subject of action” but as logical implication of the intimate involvement of a clear possession land in an action to and issues title meanings “Subject is considered as the matter” different term treating problems. different the courts See the is used .with “Subject-Matter,” “Subject noted under terms Matter of Ac- cases Action,” “Subject-Matter Suit,” “Subject tion,” Yol. 361-372, Phrases, pp. Words and Missouri, a prior Even the effective Code of date Civil (in claim join could unite a of land plaintiff stated (tó ejectment) a stated establish claim to same ¡land *7 try quiet Dowd, title) and or in one action. See Lane v. determine 167, 632, respondents; subject-matter 172 72 W. “the Mo. S. cited although only of the And, plaintiff the action is land.” a a stated claim possession, demonstrating for defendant could defend his title, estate, evidence the his and en extent of interest or thus plaintiff’s possession; and, wished, deavor to claim for if he defeat defendant state and ask could his title the affirmative relief a determining quieting Auldridge or or title. decree v. Spraggin, 858, 163 City 1042; 349 Mo. W. 2d v. North S. Titus Kansas Development Co., Hynds 264 229, 432; Hynds, Mo. 174 S. W. 253 20, 812; phase Mo. W. 161 S. and observe the “transactions connected repealed with (permissive) the same action” in the now joinder statute, 917 R. Mo. R. 1939, claims S. S. A. 917. § (New “The ‘subject action,’ term found in the code York, 1848) sections, employed by in this and or two one other was doubtless its legislature synonymous with, authors and the or rather as in the place of, ‘subject-matter action.’ I can of the conceive of no other interpretation phrase will apply which and meet all re the quirements ‘ ‘Subject-matter context. of the action’ is not the ' ’ ‘ ’ cause of nor action, object the action. It rather describes physical facts, things personal, money, lands, real chat tels, prosecuted. like, ‘relation to which is the suit is possible, therefore, that several different ‘transactions’ should have ‘subject-matter,’ or, connection with this what seems me to be the ” Pomeroy’s thing, ‘subject same this Remedies, with of action.’ Code Ed., p. 562, 5th 369, page 564. And at see “transaction . . . § connected with the action” in now repealed (per missive) 1939, statute, counterclaim Section 929 R. A. S. R. S. an uniting There is evident connection between
§ of claims litigation in one pleading, uniting they and the them in although one are pleadings. Pomeroy’s set forth in adverse Code Remedies, 5th Ed., 651, p. § “subject
The term “subject action,” matter of the action” or of the respondents term, use the is of interest because it reminds that us specific tangible “thing,” (which may same land be ab- viewed stractly legal sense, is, and in a property rights as real inci- dent to ownership thereof), is common both involved in the claim possession respondents’ stated action in and the claim appellants’ of title stated d'eter- quiet mine or title. ‘ownership “While it is usual of the speak ’ land, properly land, rights what one owns is not but rather the possession approximately user, present unlimited or future. words, In other one owns not land, estate land. but rather thing. One owns not the is, degree,
This in some true material thing, right thing.” Yol. possession enjoyment but the 2, p. 1, Tiffany, Property, Ed., The 4. Now when Law of Real 3d § question of attention is ownership possession presented, is immediately rhythmic logical focused se on title. So we have the quence -title—ownership—possession. — cases, further supra preceding are of paragraph, the second signify proce- ns They interest to here. there no insurmountable mandatory statutory claim requirement dural to a obstacle (Article Chapter 1939, R. Mo. R. A. 1684 8, 8, establish S. S. § seq.) et stated claim for counterclaim to stated statutory 1939, Chapter 8, ejectment (Article action in R. S. .in (Civil A. seq.). Mo. R. of Mis- S. et Examine Section Code R, 1685; souri) ; S. A. Sections 1535 and 1685 Mo. R. §§ Bland, State rel. supra; ex Fawkes v. Clark Real Estate Co. Old Co., Bartley, Inv. Trails 335 Mo. 76 S. W. 2d Autenrieth v. *8 App. 55, 238 Mo. 176 2d 546. S. W. said, have appellants
As we title contend is matter the the title, action and and the determine is the matter of action in right (and true the infringement thereof) is the declared on in
a simple
right
action in
possession,
is the
and in more
England
remote times the
treating,
courts of
with the common-law
(inconclusive)
restricted the
judgment
action’s
rendered
the
possessory
Taylor
220,
nature.
Horde,
Eng.
v.
Rep.
page
97
R. 190 at
page
60 at
114;
1 Burr.
Morewood,
Eng. Rep.
Outram v.
R.
102
630
page 634,
at
3 East 346
page
judgment,
at
356. “The
which is the
of the action,
only
fruit
can
follow
particular right
of the
nature
’’
claimed,
injury
and the
complained of.
v. Morewood, supra.
Outram
In
question
connection with a
jurisdiction
of a
power,
court’s
or
“subject matter of an action” has been
mean
said to
the nature of
sought.
cause
action or the relief
ex
See State
rel. Utilities
Light Corporation
Power &
Ryan,
1180,
157;
v.
337
88 W.
Mo.
S.
2d
Muench,
State ex rel. McManus v.
217
117
124,
Mo.
S. W.
Hope
Blair,
85,
v.
Mo.
Windes, many 93 W. 2d and the cases therein cited; Gibbany Walker, v. W. 2d 792. 342 Mo. 113 S. Neverthe less, (evidence land), or estate in the some interest evidence ownership rights making part up or all of the bundle of “ownership,” underlying supporting absolute issue essential right possession. Ballenger Windes, Gibbany supra; v. v. Walker, supra; Gibbany Walker, App. 489, v. 233 Mo. 121 S. W.
2d 317. Now it has not been heretofore considered that a claim and counterclaim presents “nature,” must be such as the same “kind” controversy, is, controversy or “class” of either a “title” or a “possessory” controversy, that opposing posses in order claims for sion and might to establish title be stated in and disposed of in one litigation. City Development Co., supra; Titus North Kansas Hynds Hynds, supra; 929, supra; Section now see Section 74 (Civil Missouri, supra). Code And it is not essential -that the requires which Section 73 to be stated aas counterclaim claim should opposing party’s seek the same relief as the claim. See State Bland, ex supra, rel. Fawkes v. wherein defendant wife’s claim for separate mandatorily maintenance was said Court en Bane to be required by Section 73 to be stated plaintiff counterclaim to hus sought by claim plaintiff band’s divorce. The relief hus relation; band was the severance of the marital sought by the relief money judgment. wife was a defendant Again attending language of “Subject matter” as 73— opposing party’s
used in the Section is that claim. But it is *9 the “transaction or occurrences” out of which opposing the parties’ may claims arise.
Having respondents’ petition examined in their eject- action in they ment, conventionally have observed have stated respondent we City given possession on a date was “entitled to the of the . . . premises appellants given and that on a described” date “entered unlawfully premises and withhold” possession into the such thereof City. plain respondent It is the word from “transaction” as em- cannot be by simple restricted to the ployed Section statement of by respondents, of wrong complained “for it the would seem to be could appellants that a claim accrue to impossible” out of wrong by respondents. Hayward, Ritchie v. complained of supra, 71 Mo. the and We resort to facts page circumstances at out of which wrongful entry and withholding claim of
respondents’
possession
of
by
answer filed
appellants
examined the
AVehave
arose.
in respond-
and,
supra,
action,
appellants
as noted
ejectment
pleaded
ents’
their
parties’
the
title;
briefs,
we have examined
and
and
letters supple-
right
City’s alleged
to
mentary
respondent
We
infer
thereto.
must
ejectment
us the
possession, upon
(a
in
informs
trial
letter
the file
title, either
City’s
tried),
by
of
supported
proof
case has
be
been
to
City of Caruthers
compare
an
to the fee or to
easement. See and
respondents
may be
Huffman,
ville
Mo.
Now, although appellants their answer to stated matters in which, convincingly shown, if petition in the ents’ by possession supporting absolute would title adverse own establish ership, any right respondent and clear or interest or free estate City City iand, appellants entitling stated such defensively. try did ask court to Appellants matters not then judgment title or decree make a and ascertain its conclusive rights, interests estates of monument of the evidences Thereafter, (instant) action to parties. in their and determine stated, effect, matters, title, appellants have the same existent “at they time” filed answer and seek case, their ownership make absolute unrestricted their evidence their conclusive judgment relief of by praying the affirmative decree establish they expect re-litigate which action ing upon trial (title) evidence the same- same issues [supported character] trial of the case in . are or triable It does seem were “transaction,” subject matter respondents’ us out of the appellants claim, upon powers arose which invoke -the claim granting affirmative relief of of a court in decree de claims, interest, “any rights, and all termining demands, liens and parties, them, concerning or of affecting whatsoever of 1684 R. S. R. A. property.” real said among legislature must have been those the Such situation *10 enacting purposing adjudication Section 73 in mind when in had arising opposing parties’ claims litigation of out of the one same transaction.
§93
ac-
judgment in the
the effect
give our attention to
We now
or to be tried
arid decided
tried
ejectment
as to the issues
tion
in
of record
the Court
now be
decided,
judgment
which
even
County..
it must be seen
We think
Cape Girardeau
Pleas of
Common
its
word “inconclusive”-in
of Missouri has erased
the Civil Code
Certainly an inconclusive
ejectment.
judgment
a
application to
modern-
purposes of the
in a relation to the
judgment when considered
anomaly.
incongruous
strange
As-
is
ized
Code of Missouri
Civil
duty
gauging
with
suredly,
are not now confronted
we
seen,
but the Section
judgment
of a
we have
scope and effect
change
in the tech-
has made
of Missouri
shows us
Civil Code
of a
and the inconclusive effect
nically
of the action
restrictive nature
ejectment
action of
in
old common-law
judgment as rendered
judgments ren-
ago
on to the
court-
decades
fastened
which this
seven
Benna, 70
Kimmel v.
statutory
in
See
dered in our
action
concerning
in that case
which was said
this court
Mo. 52. That
another
for the
judgment
ejectment
in
is a bar to
action
whether one
coneededly unnecessary
(70
61-68)
Mo., pp.
was
property
same
gratuitous
princi-
this
discussion is
the decision
the ease. Yet
unnecessary
seems,
statement, also
to the decision it
pal basis for the
Dameron,
page 149,
141 at
stated, in said to show “that was 1855, ’’ Three (Our italics.) years preferred. two law rule was the common cited the were repeal of Section 33 Missouri cases decided after the Scaggs, 32 Mo. and Carter Brown, —Slevin decided in 176, de City Carondelet, 38 Mo. both Holmes v. and 552, 302, 38 went back cided in to the common-law in which cases this court 1866, ac the in case further said rule. And this count the Kimmel-Benna legislature tion .of of 1857 to doubt whether State “leads us this the place willing safe-guards law, is the common and to abandon the all, same that in horses.” Albeit footing traffic in land on the say (even 1879)- the it did in announced not undertake court beneficial, a change might in the common-law rule not be wise and although prove in one. experiment acceptable 1855 did not Ellenborough Mansfield and
"Wemust defer views of Lords concerning possessory and the common-law action as it was in 1757 they They surely they talking knew what were when about 1803. safely spoke legal think problems their times. Yet we we can changed opinion venture since that times have 1757 But, gives increasing even since think lest some time weight great judges, to the utterances we here note Lord Coke’s case; lament in 1612 in multiplicity “of one and suits the same side, wherein oftentimes there are verdicts on divers the one other, yet plaintiff divers on the come can defendant no end, quiet, finite nor can hold though it often adjudged tried and party.” either Preface to Volume 8 of Coke’s Reports.
Thirty years decision, before the had Kimmel-Benna this state adopted York the New Code of Civil Procedure. modern Various practice procedure adopted many has states stricken off com- on action, changed mon-law restrictions the “inconclusive- judgment ness” of Jur., Am. Ejectment, § 18 pp. now, by 100-102. And enactment Civil Code Mis- souri, legislature our litigants, profession has and the £>'iven ready freely courts tools which if used will purposes effectuate the all legislation. liberal procedural possible benefits of State’s this adoption in 1849 of the NeAV procedural York Code of un- were duly limited a “too strict construction and in- adverse fluence' of technical common lawyer's law methods which both judges had situation, been schooled.” In such recently, and more persistent demand, there was a coming lawyers from judges, that a adopted modernizing new code be and broadening pro- civil statutes and eliminating cedural 1, Carr, technicalities. Vol. Mis- Procedure, souri Civil page at and references cited in note why Now we do not statutory ejectment see posses- action of as a sory perform Avould even more useful and efficient service freely if integrated into and used in connection with the modernized considered Missouri, ejectment were if the Civil Code Code legislature intended the Civil conclusive. seems that the any respect except in apply Missouri should actions which, prescribed. statutes, otherwise *12 A. 1939, Mo. R. S. (Civil Missouri); Section 1535 R. S. Code which nothing 4, Chapter supra, 1535. Now there is said Article conclu- judgment a rendered in an action in less makes litigation. judgments than rendered in other sive
Although may conventionally declare he is en claimant but of Mis possession premises, to of described Code titled Civil party easy ascertaining the opposing souri affords the means of entitling him upon estate which a claimant as interest or relies right' See, passim, Missouri, supra; possession. Civil Code Co., 1, Carr, Procedure; Vol. Missouri Inv. Civil Gerber Schutte supra. disputes claim supporting Whatever as to interests or estates (interest leasehold, rights possession public use, ants’ or estate), seem, it some freehold would can be isolated and tried and judgment involving rights personal final rendered as in actions aof judgment should, think, binding upon nature. The rendered we verity parties privies. and their of the evidence of the inter alleged right or supporting possession having est estate been (and decided, right duration) possession its supported will be finally judgment. Certainly title, determined in some cases demonstrating freehold, may in the sense of title ownership of the dispute, not be in but some interest such as an easement in public disputed sup use or leasehold estate be the sole porting issue, and in disputed supporting case the isolated sole issue or can be tried issues and the title to the other and conceded judgment interests or estates otherwise left If undisturbed. conclusive, such an action were considered parties in most cases will, think, unnecessary we deem it to counterclaim their title. But if true, think, it is some seem land is for some reason more precious things (tangible equal money than other or intangible, of value) it would be all really seem to the more desirable that all disputed possession claims of title and thereof parties between pending involving possession (the claims of title or same) finally land be fixed should determined and put settled and repose litigation, in the one than to let the issues remain alive and litigation unsettled to be determined in future some series liti gations. expressed are not those here views herein may be the Tt Bar, of the Missouri includ members fellow by our entertained
tofore
possession
to or
consequently titles
courts, judges
ing eject
(although actions in
depending
may yet be considered
lands
tried) upon a future but
have been
lands
such
ment
try in an action to
deter-
ejectment conclusive
quiet title,
mine or
as seems
opinion
to be the
of appellants’ counsel
of the title
land
involved in the instant action. Consequently,
the effect of
prospective.
this decision is
Klocke
Klocke,
276 Mo.
572,
'It is so ordered. and Dalton, GG., concur.. PER foregoing CURIAM: The opinion by Van Osdol, C., is adopted opinion as the All judges court. concur. Ed Ashton, Executor of the Estate of Anna Tennyson, Deceased, George Respondent, v. J. Appellant, No. 40952 221 Buchholz, (2d)
S. W. *13 One,
Division June