*1 645 gauging charges pre- labeling.” opinion We are of the that the by 22-a, 21-a-l to in scribed Section are those referred Section inspection fees, fees, so are in the nature of and not license which are by limiting charges coun- (25) fixed other sections. The section municipalities impose, requires every holder of a state ties and permit permit or “In addition to the fees and license pay, license by inspection required paid fees and this act to be into the state fees by treasury (not in in the amount . . . a such sum excess of fee required paid treasury this into the state for such state act license) county authority permit court, corresponding or as the or the City may be, by Louis, in the of St. as the case shall order record (not exceeding one and determine” and “a such sum license fee by required paid one-half the amount this into the times act treasury law-making permit license) state for such state or as the body including City Louis, may by municipality, of such of St. city authority ordinance determine.” It seems clear that the foregoing under the section was exhausted the enactment of Sec- imposed charge tion 10 of the ordinance which two and one-half treasury required paid times amount- to be into the State for a license; and, therefore, provisions permit State of Section setting up gallonage fall, judgment 10-A tax must as invalid. The reversed, is, accordingly, and the cause remanded with directions conformity for the here- enter with views expressed. All concur. Evelyn Kidd, Appellants,
Earl Kidd v. Fred Schmidt. 136 (2d)
S. W. 72. One, January 23,
Division 1940. Whittington appellants. Anderson & *2 respondent. David B. Bussell
BRADLEY, cause was commenced two counts. The C. This ejectment Beach, possession first was in to recover of two lots Times County, dismissed, and the second count which St. Louis was to enjoin building operations premises defendant from on the might which result liens for work and material. The 5, 1935, in form and count is conventional fixes December as entry. (ejectment) date of unlawful The answer to the first count general allegations is a denial and pe- about the same as in (hereinafter out) tition convey- set filed defendant to cancel a deed ing plaintiffs, the two and for other far appears lots relief. So here, no reply eject- was filed. The court found for defendant in the ment case and also on his cross and plaintiffs appealed. (appellants here) brought
Plaintiffs up have the record proper only, here) (respondent defendant *3 has not filed a'brief. As stat- ed, form, the count is conventional and it is not neces- sary to The petition set it out. follows:
“Defendant, answering, further and as and for his herein cross bill long states: That on and for a prior day time to 4th December, the of 1935, defendant was the owner in fee simple possession and in of the certain real estate mentioned plaintiff’s and described in petition. shortly
“That prior to said date defendant made and entered writing into contract in plaintiff, Kidd, by with Earl of terms plaintiff which promised agreed said and that in consideration of the conveyance to him of the title to said described real estate he would permit defendant occupy to and estate, reside on said real and he to food, furnish to defendant clothing proper support, and maintenance for the of life, remainder in pursuance defendant’s and of the terms of defendant, said contract on or day about the said 4th December, of 1935, (Italics ours) caused the title conveyed to said real estate to be to plaintiffs; thereafter, said that and day until on or about the 25th March, of 1936, plaintiff, Kidd, Earl performed said contract on his part, at which time said Earl Kidd notified defendant that he was longer unable to perform part his of said contract and that he would reconvey the title to property said defendant; to and at all times since said date plaintiff, Kidd, said failed, neglected Earl has and refused comply any to perform with or contract, of the terms of said and wrongfully fraudulently has and reeonvey failed to the title of said property to defendant.
“That at the conveyance time of the of the title to said real estate plaintiffs to said and the execution of said plaintiff contracts said promised agreed and defendant, with as a part of the consideration of said conveyance, to cause conveyance, together said contract, with said to be recorded in the recorder’s office County, Missouri, of St. Louis in order that rights defendant’s and interests in the premises conveyance yet caused said
fully protected, plaintiff said while him that he had done like- recorded, and informed to be defendant design part intent on his contract, in furtherance of and wise to said wrongfully and and to deceive, this defendant cheat and defraud property, title to said said fraudulently deprive defendant of the fraudulently failed and execution plaintiff at all times since its has neglected to be recorded as aforesaid. cause said contract 1936, on day April, the house and residence
“That on the 12th of defendant, believing destroyed by fire, and said real was said estate longer him he would no plaintiff’s previously made to that statement reconvey perform contract and that he would said part his of said defendant, relying thereon, by own property to aiid defendant’s neighbors, charity friends and erected another efforts and of his dwelling although property, plaintiffs on said and well knew building residence, they complaint objection no of said made any interest or building the erection of said and made no claim of building that on the completed; title real until the to said estate day 1936, Kidd, Earl notified July, plaintiff, 20th of when said de- ownership property. on fendant to desist further acts of said plaintiffs herein are insolvent “Defendant states that remedy adequate and at law. defendant is without “Wheréfore, conveyance defendant that on prays said so executed day December, 1935, or about 4th plaintiffs to said be cancelled aside; right, and set that said be divested of all title and estate, interest in decribed real and all such title be said that vested defendant, just and for other further relief this such ’’ equitable. The having recites that “the court heard evidence fully and proof arguments counsel, being adduced and the ad- *4 vised in the premises, plain- now in favor defendant on finds petition, tiffs’ in .and finds favor of the defendant and against plaintiffs therefore, is, on defendant’s bill. It consid- cross ered, ordered, made, adjudged the certain deed and decreed that by English plaintiffs, executed and delivered to Earl Kidd Florence Evelyn 1935, and Kidd, wife, day December, pur- on 4th of his the porting convey following to real plaintiffs to said the described County Louis, Missouri, to-wit, estate situated in the of St. State of (description) of which deed was filed in the of the recorder office day December, deeds of County, Missouri, St. Louis on 5th of the 1935, thereof, 1381, page and recorded therein in book at 181 be hereby and the canceled, vacated, naught same is for set and aside held; Evelyn Kidd, and that the and plaintiffs, Earl Kidd and be hereby each of right, them are all and interest in and divested of title to the same.”
It will be noted allege petition that defendant in the does not conveyed conveyance that he the plaintiff, lots to that he caused the but to be judgment made. the Also, it will be noted that the sets aside
649 clivests title English plaintiffs, to lots) by Florence (to the deed Eng- Florence in defendant. not title but does vest plaintiffs, from necessary awas that she contended and it is party, a lish was not void. the is situation, that, in the party, of Instru- 1031—Cancellation Juris, Secundum, page Corpus a or set aside to cancel 54, says that, an action in ments —Section dead, if his necessary party, living, a deed, grantor, if is the necessary Corpus In 9 parties. are persons or interested heirs other 126, the law Instruments, section of Juris, page' 1225—Cancellation thus: is stated cancellation, that rescisión or rule, in suits for general “It is the through the with or or relations rights, all whose interests persons or re- by cancellation the be affected subject matter of the suit would they can be heard that brought court, the so be before scission should rule the well settled in in accordance with their own behalf. This is claiming or having equitable every person equity that in suits must, The court party. a legal rights subject matter in the made having without a instrument cannot undertake to cancel written caneellaion. proposed the parties before all to be affected it made cannot be a final in a to cancel deeds And where decree suit parties, materially made affecting persons interests of not without jurisdiction pro- review original nor of should neither the court of although objection is corrected, no ceed further until the omission is of by any litigant.” Jur., p. Am. 395—Cancellation party made [9 Instruments, 54, to the same sec. is effect.] 684, W. Henry 302 Mo. 259 S. v. Bank Wentworth et al., et ux. securing In the same. 462, to cancel a note and a deed of trust was an 466) that “in (259 S. W. opinion-the course of the court said subject matter equity any having in the proceeding person an interest instance, grantor, A is party. of the action made a which he has necessary .party affecting in an the title to land action conveyed warranty.” with covenants of appear not from record that deed from
It does before us warranty, English but Florence contained covenants necessary general rule, not, whether it did or under the she seeking party petition after defendant came with his cross forward .plaintiffs. made set aside deed she alleged, in defendant, It will be observed that his cross effect, that, prior conveyance English plain- to the from Florence tiffs, possession.” he the owner in and in Even simple “was fee true, warranty though any that such were it would no wise affect English may Florence have made. *5 situation, judgments,
In view of the on the both count and on the cross should be reversed the cause Dalton, CC., Hyde remanded. It is so concur. ordered. C.,
PER Bbadley, foregoing opinion adopted CURIAM: The is All opinion the judges court. concur.