150 Mo. 579 | Mo. | 1899
This is an action in ejectment to recover 139 acres of land in Cooper county, described in the petition, which is in common form. The answer of the defendant, after a general denial, sets up the following defense to plaintiffs’ cause of action:
“And for another answer and defense to plaintiffs’ petition this defendant says, that the plaintiffs’ claim to the land described is by inheritance from one John H. Alexander, and not otherwise; that this defendant is the brother of the said John H. Alexander, deceased, and is the only brother or sister of said deceased of the full blood that is now surviving or that was living at the death of the said John H. Alexander, and that said deceased was never married, and that his father and mother are both dead, and that plaintiffs’ claim to be his half brothers or sisters, or descendants of same, and assert title to said land by inheritance, as aforesaid, from said John H. Alexander, and in no other manner.
“Defendant further states, that the father and mother of the said deceased and this defendant separated, and ceased to live together as man and wife, in about the year 1844; and that by an agreement between them, the custody and control pf the defendant and the said John H. Alexander, deceased, was given to their mother, Edith Alexander; and said boys,*584 together with two daughters of the same marriage, were brought to Cooper county, Missouri; and the said Edith Alexander purchased, partly upon credit, a portion of the land described in the petition, and moved thereon with her four children, to wit: The said John H. Alexander, the defendant, and their two sisters, and that they continued to reside thereon for many years; that the remainder of said land, described in the petition, was purchased by the deceased, John H. Alexander; that afterwards, it was agreed by and between the said John H. Alexander and this defendant, with the assent and concurrence of their mother, that the said John II. Alexander should remain with and care for their mother and sisters, and that this defendant should go to the State of California and work there, and that he should send home, to his said brother and mother, all of his earnings over and above the amount necessary for his support, and that the same should be used in paying for the land purchased by his mother and a part of which is described in the petition; that afterwards, it was further contracted and agreed by and between the said John H. Alexander and this defendant, that the said John H. Alexander would buy other lands, in his own name, in addition to that to which the title was then in their mother; and that this defendant would from time to time send to the said John H. Alexander money to assist him in paying for the land so purchased; and that the lands described in the petition were purchased and held by the said John H. Alexander, under said contract and agreement, and were paid for, in part, by money furnished to them by this defendant; that the total amount of money sent by this defendant to be invested in, and which was invested in the lands described in the petition, amounted to the sum of $896; that the said John II. Alexander offered to convey to this defendant an undivided half interest in said lands in consideration of the money belonging to the defendant which had been used in paying therefor; that the defendant declined said offer; that the sisters, born of the*585 marriage between tbe father and mother of said John H. Alexander, were then dead, and that only the said John H. Alexander and this defendant remained alive; that said John H. Alexander was single and unmarried; that neither the said deceased nor this defendant had ever any knowledge of, or intercourse with any of their half-brothers and sisters after the separation between their father and mother, as aforesaid; that in view of these facts and for and in consideration of the said sum of $896, advanced by this defendant to the said John IT. Alexander to be used in paying for said lands as aforesaid, and in consideration of the promise then and there made by this defendant to the said John H. Alexander not to require him, the said John H. Alexander, to repay the defendant the said sum of $896, advanced as aforesaid, it was then and there, to wit, in May, 18J6, contracted and agreed by and between the said John H. Alexander and this defendant, that all the property of which the said John H. Alexander should die seized, should upon his death pass to and vest in this defendant, and that said deceased would execute necessary wills and conveyances to carry into effect said contract; that in consideration of said contract upon the part of the said John H. Alexander, and relying thereon, this defendant permitted, the said John H. Alexander, to retain the title of the whole of said land, and took no step, whatever, to collect from him said $896, or any part thereof; that the said John H. Alexander died in the county of Cooper, in the year of 1894, without having made a will and without having conveyed the lands described in the petition to the defendant, as he was in duty bound to do under his said contract; that the said John H. Alexander failed to provide, by will, that said property should belong to this defendant, as he had promised and agreed to do in the contract aforesaid, because of his belief that this defendant would be his sole and only heir, and for no other reason.
*586 “Wherefore, the defendant prays that said contract be specifically enforced, and that the legal and equitable title to the lands described in the petition be Tested in this defendant, and for all proper relief.”
Issue was joined upon the new matter set up in the answer by reply, which also contained a plea of the statute of frauds. The case was taken by change of Tenue from the Cooper to the Saline county circuit court, where it was tried by the court without a jury, the issues found for the plaintiffs, and judgment rendered in their faTor for the undivided twenty twenty-seTenths of the premises, and the defendant appeals.
John IT. Alexander, deceased, is the common source of title. He died in 1894, seized in fee of the premises under the following chain of title:
Deed, dated January 23, 1846, from James Thomas and wife to Edith P. Alexander, for 13 acres of the land in cont-roTersy, in consideration of the sum of $60, paid by her to the grantors.
Deed from William Gartner and wife to Edith P. Alexander, for 40 acres of said land, dated October Y, 1850, consideration $190.
Deed from John Allison and wife to John H. Alexander for 80 acres of said land, dated June 8, 1860, consideration $1,000.
Deed from Jas. H. Rennison and wife to John H. Alexander, for 5 1-2 acres, acknowledged January 2, 1882, consideration $165. On the 30th of October, 188Y, Edith P. Alexander died leaTing surviving her, as her only heirs at law, her two sons the said John H. Alexander and the defendant.
Deed from Isham E. Alexander and wife to John IT. Alexander, conveying all of defendant’s interest in the 53 acres of land belonging to Edith P. Alexander, and his interest in the personal property of his mother’s estate, dated May 25, 1888. Consideration $802.50.
It appears from the evidence that prior to the 9th day of December, 1844, Eeuben and Edith Alexander were husband and wife, living in Boone county, Missouri, and having three children born of the marriage, to wit, the said John H. Alexander, deceased, the defendant Isham E. Alexander, and a daughter named Sarah. That on that day they were legally divorced. That a short time thereafter another daughter was born named Susie. That at some time between the 9th of December, 1844, and the 23d of January, 1846, she, with her two little daughters, removed from Boone to Cooper county and purchased the 13 acres of timber land before mentioned, for which she received the deed of date January 23, 1846, about which time also she effected a settlement with her late husband by which she obtained the custody of her two sons, and received from him,-with them, the sum of $500, and by the assistance of the neighbors succeeded in getting a clearing made and a log cabin erected on her little tract of land. Thus it was that in the beginning of the year 1846, this brave woman commenced her new life in this humble home in the woods, with her four little children, one of whom, John H., was to some extent an invalid, afflicted with a disease called “the white swelling.” He was the oldest, and was then probably about 16 years old. Isham was two or three years younger; the sister, Sarah, still younger, and the baby, Susie, who died in infancy. Mrs. Erazier, an old lady who was the last of her cotemporary neighbors, testified that she was a
After Isham went to California, his mother and his brother John, and them sister, continued to remain on the little farm as before, until 1860, when John purchased the 80 acres for which he received his deed of June 8, 1860, and thereafter they continued so to live during the war; the family being supported and maintained during the time, in the language of Mrs. Brazier, by “herself and her own exertions, and her children at home, and this young man here in California sent his mother money every once in a while, I don’t know how much, but I heard of him sending money to her during the war. She would get money from Isham to help her out.”
During this time John, although lame as a result of his.
' “Boonville, Mo., August 21, 1864.
“Dear Brother — I received your letter of July 16th, a few days ago, containing a gold draft. Many, many thanks for it. I got it changed into greenbacks. Got $266 for it. Will pay it on my land. Don’t know what I would have done without it. You didn’t say whether you would take half interest in the land or not. I paid the money you sent mother on my land. This maíces $I¡.00. Mother says I ought to malee you a deed to half interest in the land. I tuill do so any time you want it. There is work enough on the farm for both of us and we all want you to come home. Mother and sister are both awful anxious to have you come. We have had a great deal of sickness here this summer. . . . We are all pretty well except mother, she is complaining some. Sister is teaching school again; we had a letter from her; she is well. All join in sending love and best wishes.
“Your brother, J. H. Alexander.”
“May 19th, 18J5.
“Dear Brother — I received your letter of April 14th three days ago and was glad to here that you were as well as usual. It found us only tolerably well. I have been quite unwell all spring and mother had been failing fast since last fall. She is never right well any day, and is suffering with the tetry in her eyes. Mother says for you to come home if you want to see toer, for she thinks she wont live long, and I am afraid its so. I think you can do as well here as in California — at least we*590 can malee a living and all be together. ... I sent sister’s picture to yon some time in April. I bad it copied. It is not quite as good as the original. I was afraid to send the original, afraid it would get lost.
“I am going to town to-morrow for a 50-dollar set of grave stones for sister’s grave, they are very neat. It had a Bible open, and a verse engraved on it, ‘Blessed are they who die in the Lord.’
“I am excusable this time for not answering your letter sooner, for I did not receive it until three days ago. You said that you had written three letters since you had received any; I never got them. Answer soon and come home. Mother’s and my love, hoping we will see you soon,
Your Brother, J. H. Alexander.”
It appears from these letters that before the last one was written, May 19th, 1875, the sister had died and the mother’s health was declining, and from the evidence, that sometime in the year 1876, Isham visited his mother and his brother John in Missouri, and sometime after his return to California from that visit, married and continued to reside in that State. That about the first of the year 1884 his wife and- daughter visited John and his mother in Missouri. Upon their return to California, and in answer to a letter from her, John wrote the following letter, omitting immaterial parts:
“Boonville, Mo., Eeb. 10th, 1884.
“Dear Sister, Brother and Chick — I should have written ere this if it had not been raining, sleeting or snowing every day since I received your letter yesterday one week, and is sleeting and raining to-night. . . . Sister,You speale of my leind favor and your obligation to me. Now I doné you to mention that, for I am under many times more obligation to brother for money sent me when in sore need and I have promised and expect to repay it all some day. I want you all to remember that you promised to come home inside of three years. I will try to have things more comfortable by*591 that time. I would come and see you all but you know that I can’t leave mother. If brother was here I could go more. Thanks for your kind offer to make my shirt, but one of my neighbors has taken it to make. Don’t expect it to be as nice as the one you made, for that is the nicest I ever had. I will let you make them when I come to live with you That is if I don’t take a fool notion to get married, hut, oh, 1 forgot that I promised brother I would not marry. Peaches, cherries and blackberries are all killed, the apples we can’t tell yet. Mother and brother, love to all.
“J. H. Alexander.”
In the meantime John had bought the 5 1-2 acres for which he had received his deed dated January 2, 1882, and as before stated, on the 30th of October, 1887, Mrs. Edith P. Alexander, the mother, died, and. on the 9th of November, 1887, John wrote as follows:
“November 9th, 1887.
“Dear Sister and Niece — I should have written before this but have not gained strength as fast as I expected and have just applied for letters of administration and will have them next week and be ready for business. I consulted a lawyer and also the probate judge and they both told me that it was not necessary, if I thought I have no difficulty in collecting the notes, but if G-reenalgh refused to pay I could not make him pay, so I have administered and will demand the money or bankable notes. ... I will write soon and let brother know what I have done or can do. I intend to collect the notes and send him the money if it can be done legally, for I don’t want to Iceep the money any longer than I can help. ' Your loving Brother,
“J. H. Alexander.”
“Boonville, Mo., Dec. 16th, 1887.
“Dear Brother, Sister and Babies — I received yours of November 27th three days ago. . . . Can't you fix matters so that you can come home in the spring so we can fix up things. Then you could see about the Creenalgh money yourself, and we could settle up our other affairs, too. Of course I don’t want to divide the land, but I am willing to share it with you noto, and leave it to you as I agreed to when I die and I often think that won’t be long. Mother always said that I wouldn’t live a year after she died. "Well, little Chicks Grand Ma is no more, but she remembered last summer your Christmas and laid it bye and said I was to send it if she did not live until then. So here is the last Christmas dinner Grand Ma will send to you all, twenty dollars. Love to all, although our Christmas will be spent in sorrow.”
On the 25th of May, 1888, as we have heretofore seen, Isham by deed of that date, in which his wife joined, conveyed all his interest in the personal estate of his mother and in the 53 acres of which she died seized, to John.
On the 2d of June, 1888, John remitted to Isham a draft on New York for $500, and on the 7th of July, 1888, another draft on New York for the same amount.
On the 9th of January, 1891, in a letter to his brother Isham and family, John wrote: ... “I had to be at court on December 18th to settle Mother’s estate, which took a long time and expense for nothing, just because the law said so. It’s settled and off my mind now. John Greehalgh has done nothing yet. ILe offers to take $30 per acre for the home place and it ought to sell for that, for it is one of the bestfarms in the county. This is $1200 first mortgage which is ahead of your money, but I think it will come some day. You want me to come to California and say I can live easier than here. That may be so, if I had plenty of money to live on, but I am
And on November 11th, 1891, in a letter of that date he wrote: "I want to sell out to come to join you and take a rest, for I think I have worked hard long enough. One thing keeps me from selling is the poor house, and it won’t pay to build. We can’t get payed for the improvement other xoays. The fax'm is in good shape. Greenalgh is here now trying to sell his home farm; if he sells you will get part of your money. The first mortgage will have to be paid first. How much I can get for you I don’t know. Henry Crawford is .talking of buying the farm and is trying hard to get me in with him, but I don’t intend to go in debt again. It won’t do. I think it is best to take what we can get and wait for the balance, if there be any. I am getting very anxious to have this thing settled and off my hands. I think he owes about two thousand five hundred. I think I can get $1,000 cash out of it, and the remainder in Bates county land. I want to get it off my mind some way.”
And on the 8th of December, 1893, in a letter of that date, he wrote:
“Boonville, Mo., Dec. 8th, 1893.
“Dear Brother, Sister and Children — I have just received yours of November 26th, saying that you had not heard from me for a long time. I wrote to Allie in September. Received letters from each of the children a few weeks ago. Am very glad to see they write so well. Will write them soon. I want them to write often, for I am always anxious to hear from you all, although I am very slow in answering. In fact it is very hard work for me to write, it is a great deal easier to*594 ma.nl rails. My health has not been good this fall. I have had chills, rheumatism and colds, though able to be up and work some all the time. I wish you would come loach here on the farm. There are only two of us left. You could do just as well here. My health is poor and if anything happens to me all I have here will he yours.” . .
On the 5th of February, 1894, John died, and soon thereafter Isham went into possession of the premises and this suit was brought. Some additional light is thrown upon the story by the declarations of John, as shown by the following extracts from the parol evidence.
Captain Reiser testified:
“I was in Boonville one day and he told me he had just sent Isham five hundred dollars of his money.
“Q. Did he tell what he sent that for — of whose money? A. Isham’s money. lie said that it was money that was sent to him; that Isham sent them money, during the war, and that she did not need it; that she had put this money out at interest audit had accumulated and that he (Isham) was in trouble and they needed it. Q. Isham was in trouble? A. Yes, sir. Q: And needed his money ? A. Yes, sir.” Being interrogated in regard to other conversations he answered: “Yes, sir, when I would be out there at his home. I don’t know exactly when it was, but it wasbetween 1865 and 1819 though, he had told me several times that Isham had sent them money time and again. Q. Did John tell you how they had used the money that Isham had sent ? A. To pay for this land.” He further testified to a conversation he had with John in 1893, the year before John died, as follows:
“Q. Well, tell what he said? A. I was waiting for a wagon and he came along and I got in his wagon and rode to town with him, and I was joking him about getting married, or something of that kind; and he said, T never expect to marry,’ or something of that kind; in fact, he said: T can’t marry, I have nothing to marry on.’ I says, ‘Where is your farm ?’*595 and be says, ‘Well, tbat don’t belong to me, I agreed to give that to Isham/ And I says, When did you agree to do that ?’ Well,’ he says, Tn 1816, when Isham was here to settle up the estate.’ I says, ‘Plow come yon to agree to that ?’ and he says, ’Isham had furnished them money during the war and also money to help pay for fhe land, and he came here in 1876 and called for a division, and I told him if he would not divide it that it would all he his when I died and that I would leave it to him/ ”
“Q. Did he tell yon, in that conyersation, how much money Isham had sent to him to help pay np on that land? A. No, sir. Q. He did not tell yon any amount ? A. No, sir, he said that he had sent money time and again to assist in paying for that land.” And on cross-examination he testified, “He told me that Isham came here for a settlement. Q. Abont his mother’s estate ? A. Abont his mother’s estate, and he told him that if he would not settle it, and let it go as it is, he would leave all he had to him when he died. . He said: ‘I agreed to give it to him if he would not call for a division and just let it go as it was/ and that was the way I understood it.”
Mr. Cooper, another witness, testified to a conyersation he had with John abont the time Isham got into tronble, and to subsequent conversations, as follows:
“I met him on the street in Boonville, and asked him how Isham was financially and if he needed any help, and he said, ‘No, sir, I have just sent him some money;’ lie did not say whether it was that day or what day it was, but it was about that time. I had just heard about it a few days before that, and that was why I asked him the question, and I told him, I says, I suppose now that you will let us know something to that effect if Isham needs any help, and he says it does not matter about that, he has plenty without it here, was the remark he made. I believe that was about all. There was some one come up and interfered with our conversation and*596 that was aboút all I said to him in that conversation. Later on — it was at the time I was loading a sheep into the wagon, and I had bought a sheep from him, and I was teasing him about not marrying, and he says, ‘No, I will never marry, George, I don’t care to marry, I am getting old,’ and I says, ‘What are you going to do with this property here if you ain’t going to marry ?’ And he says, ‘That will be I sham's with an agreement.' I have promised to leave that to Isham'. . . . And the next time I had anything to say with him was there, after his mother had died, and I was there after poultry, and my wife was with me, and she brought the conversation up herself as to him marrying, and he made the remark and says that he never intended to marry. She asked him the question, rather, why he did not marry and fix up the place, and not live there like he was — he was ‘keeping bach,’ and she went in and was helping him to prepare some dinner, is how the conversation came upv And he just simply says, ‘I don’t expect to marry, and I don’t want to fix it up, and I don't want to fix up this property because it is Isham's.'"
Mr. Reid, another old citizen of Cooper county, testified to a conversation he had with John a short time after the visit of Isham’s wife and child to him in 1884, as follows:
“I was rather joking John once and telling him, I says, ‘John (it is here in evidence that he was crippled and very Jame and a very hard-working boy, or man, and I thought he was really working too hard, and I says) — -‘‘John, without you intend to marry, why are you working yourself to death here ? You have got enough, it seems to me, to live better than you do,’ and he says, ‘I never intend to marry. I have no idea of it,’ but he says, ‘Isham has a daughter, and I expect him to get what I have got, and that child.'" . . .
(1) The cause of action set up in the answer upon which the defendant predicates his prayer for the relief therein sought, is in substance an alleged contract made between him, and his brother, John H. Alexander, in his life