ERNEST CAVE, Appellant, v. MELISSA WELLS
Division One
April 11, 1928
5 S. W. (2d) 636
Appellant also says that the question of estoppel is to be governed by the law of Illinois where plaintiff performed its part of the contract, and that under the law of that state the defense of ultra vires is available in this case. We do not consent to the first proposition, and it, therefоre, becomes unnecessary for us to rule on the second. The acts and conduct of defendant which make this defense unavailable do not arise out of, nor are they in any sense connected with, the performance of the contract. They were misleading from the very start and having been persisted in until the contract was duly performed defendant cannot now by pleading ultra vires avail itself of an inconsistent position to effect a legal wrong. The law of the place of contracting would still govern, and we deem it unnecessary to burden this opinion with a consideration of the law of Illinois.
Appellant further says that the dual agent, Mr. Diehl, did not have authority “to bind. defendant to the asserted obligation.” No authorities are presented in support of this suggestion. We think the stipulated facts and the conclusions of law hereinabove aрproved dispose of this question adversely to appellant‘s contention.
The conclusions we have reached and stated herein obviate the necessity of considering other contentions made by appellant.
Finding no error in the rulings of the trial court it follows that its judgment herein should be and the same is affirmed. All concur.
SEDDON, C.— This is a suit in which plaintiff (appellant) seeks the admeasurement and assignment of dower to defendant (respondent) in the west one-half of the northwest quarter of the northeast quarter of Section 5, Township 27, Range 20, in Christian County, Missouri, and that plaintiff be decreed to be the owner of the fee-simple title in said described land, subject to defendant‘s dower therein as so admeasured and assigned. Plaintiff is the grandson of defendant, and is the son and sole heir of Tennessee L. McDonald (referred to in the record herein as Tenny L. McDonald), a deceased daughter of defendant by a former marriage of defendant and William McDonald, who is the common source of title. William McDonald died intestate in the year 1886, and was survived by his widow, the defendant herein, and by one child and heir, Tennessee (Tenny) L. McDonald, the mother of plaintiff. At the time of his death, said William McDonald was the owner of forty acres, more or less, of land in Christian County, including the twenty (or, possibly, twenty-three) acres above described and now in controversy, and twenty acres adjoining the above-described land on the south and southeast, and described as the north one-half of the southwest quarter of the northeast quarter of Section 5, Township 27, Range 20, in Christian County. Tennessee L. McDonald, at the time of the death of her
The answer of defendant pleads, as an equitable defense to the petition, that “at the time of the death of the said William McDonald, he was seized and possessed of forty acres of real estate in Christian County, Missouri; that the real estate dеscribed in plaintiff‘s petition was one-half of the said land, and that the remainder of said forty acres lay south and southeast of said twenty (acres), joining the same, and was described as follows: the north half of the southwest quarter of the northeast quarter of Section 5, Township 27, Range 20; that the dwelling house of the said William McDonald was situated on the land last above described; that this defendant, his widow, and Tenny McDonald, his daughter, were the sole heirs at law of the said William McDonald; that some years after the death of said William McDonald, to-wit, on or about the year 1898, this defendant and Tenny McDonald, who later married Louis Cave, orally agreed upon a division between them of the real estate of which the said William McDonald was seized at his death; that it was then agreed between them that Tenny McDonald should have the land last above described as her оwn real estate, free of any claims of this defendant as the widow of William McDonald, whether by dower, or otherwise, and that this defendant should have the real estate described in plaintiff‘s petition as her own separate real estate, free from any claims of the said Tenny McDonald as an heir of the said William McDonald; that acting upon said agreement and oral division or partition, said Tenny McDonald immediately went into possession of the land last above described and remained in possession thereof until her death in 1908, and that her husband, Louis Cave, is now in possession thereof; that this defendant immediately and at said time went into possession of the real estate described in plaintiff‘s petition and has been in the undisputed, adverse, peaceable, notorious and uninterrupted possesssion of all of said real estate and claiming to own the same in fee simple from said date until the present time, and is now in possession thereof; that the said Tenny McDonald, during her
The record discloses that defendant, Melissa Wells, and L. D. Wells, her husband, as grantors, on December 27, 1901, in consideration of the sum of $250 (so expressed in the deed) paid by T. L. Cave and L. N. Cave, her husband, as grantees, made, acknowledged, executed and delivered a general warranty deed, with express covenants of warranty, conveying to said T. L. Cave and L. N. Cave, her husband, all of the north one-half of the southwest quarter of the northeast quarter of Section 5, Township 27, Range 20 (the same being the twenty acres of land adjoining and lying south and southeast of the land now in controversy), which warranty deed was duly filed for record in Christian County on May 24, 1902. The said deed contains this paragraph or recital: “We, Melissa Wells and L. D. Wells, give to the said T. L. Cave as an advancement on her interest in our estatе, either present or future, the sum two hundred and fifty dollars, it being the intention of the grantors herein to hold all of their estate that in present or future divisions the children of Melissa Wells, nee Melissa McDonald, and the children of L. D. Wells shall have equal shares in case any administration ever be had thereon, or settlement thereof made, and the said amount of two hundred and fifty dollars should be charged to the interest of the said T. L. Cave and her heirs. It is the intention of the grantors herein to deed an absolute ‘fee’ estate without any limitations whatever to said grantees, T. L. Cave and L. N. Cave, her husband.”
Respecting the alleged oral division or partition; by and between defendant and her daughter, Tennessee (Tenny) I. McDonald, of the forty acres of land owned by William McDonald at time of his death, the witness, L. D. Wells, present husband of defendant, testified: “I knew William McDonald. He died abоut thirty-eight years ago—about the year 1886. At the time of his death, he had one child by the name of Tennessee McDonald. At the time of his death she was about six or seven years old. His widow‘s name was Melissa. I afterwards married her, and she is now my wife. I married her about thirty-six or thirty-seven years ago. This child, Tennessee McDonald,
Witness, Mrs. C. K. Bostick, testified: “Mrs. Wells (defendant) is my sister-in-law. I live in the neighborhood of their home. I knew her daughter, Tenny. I have known her for thirty-three years. I have known Tenny from the time she was twelve years old till she died. I lived in their neighborhood when she was married. I was up at the Wells home shortly before the marriage. I heard Mrs. Wells say something about a division. Soon after that I had a talk with Tenny Cave, after she was married, at her home. . . . She
Mrs. Lizzie Smith testified: “I am a half-sister of Tenny Cave and I am thirty-six years of age. As a girl I stayed with Tenny Cave a great deal. We grew up together and I slept with her until she was married. She was married when I was about eleven years old. Q. Do you know anything about an agreement between her and her mother? A. No, sir; I was small then and didn‘t hear anything about it, but she talked about it. I was over there quite a bit and we would talk things over. She said that when she was going to get married they asked her where she was going to live, and she said down on my twenty acres, and Ma got the north twenty and she got the other twenty. She never did say anything but that the other twenty acres on the north side was her mother‘s. I don‘t remember whether they made the agreement before or after they were married. When she got sick we moved in there to take care of the stuff, and she went up to Ma‘s to stay, so they could take care of her, and she said that was hers and the other was Ma‘s. She died in March, 1908. We were on the place at that time and she was with mamma. She went over in November before she died in March. Mаmma remained in possession of this north twenty until Tenny died. I always understood that it was hers. My sister, prior to her death, knew that my mother was claiming to own that twenty. She was always satisfied and thought things were all right.”
Grover Smith, husband of Mrs. Lizzie Smith, testified: “I knew Tenny Cave. I knew her about three or four years before she died. Q. Prior to her death did you ever have any conversation with her relative to the division of this forty acres of land? A. We were
William Wells testified: “I am a son of L. D. Wells and am forty years of age. I was raised with Tеnny Cave. I was fifteen or twenty years old when she married. I did not hear any agreement or terms about the division of property between her and her mother. I guess I was out. After that she talked about her piece of land and Ma‘s. I mean by her mother‘s the north twenty—the land in this suit. They had the other twenty in their possession. She lived there and claimed it as hers. She said they had had an agreement or division, and one was to take the south twenty and the other the north twenty. I heard her mention it once or twice, I guess. My step-mother was in possession of this twenty involved in suit from the time my sister married, and claimed to own it all that time. My sister knew that my mother claimed it, and she never made any objection. My sister claimed to own the other twenty acres. After Mrs. Cave died there was a fence put between the north and south twenties. The other fence had not been on the line. . . . There was a gullеy washed out about ten years ago and we did not need the spring, and Louis Cave changed the fence and put it on the line. This conversation about the ownership of this land was after my father and step-mother had made a deed to it. . . . She said at the time they had divided the land her mother got the north twenty. I had heard of it before. I never heard them make the contract dividing it. I heard about it from father and her mother. I never heard her say anything about it before. It had been understood all of the time.”
The defendant, Melissa Wells, testified as a witness in her own behalf, over the objections of plaintiff, but at the close of all the evidence her testimony was withdrawn by her counsel.
L. N. Cave, father of plaintiff, testified: “I am the father of the plaintiff in this case, and the husband of Tenny Cave. Melissa Wells was my mother-in-law. Prior to the time when I and my wife were married, we had a conversаtion with Mrs. Wells (defendant) about where we were to live. I told her that my wife said we could live down there when we were married, on this south twenty. She said, ‘Yes, you can move down there, for she will get that some day.’ At that time I never heard my wife, or anyone else, say that the land had been divided, and she had taken this twenty and her mother the other twenty. I never did hear my wife, nor Mrs. Wells, nor anyone,
The trial court found the issues for defendant and entered judgment affirming and confirming the oral division or partition of the forty (or forty-three) acres of land, aforesaid, and adjudging defendant to be the owner in fee simple, by virtue of said oral division and by virtue of the Statute of Limitations, of the twenty (or twenty-three) acres of land described in the petition, and that the plaintiff has no right, title, interest or estate therein and is forever barred from asserting any claim of ownership therеto, adverse to the title of defendant and her grantees, and plaintiff was ordered to pay the costs of suit. After an unsuccessful motion for a new trial, plaintiff was allowed an appeal to this court.
The instant cause appears to have been tried below upon the theory that defendant, Melissa Wells, as the widow of William McDonald, who was the common source of title, had consummate dower in the forty (or forty-three) acres of land of which William McDonald died seized, and seemingly plaintiff, by the very nature and purpose of his action, which seeks the admeasurement and assignment of dower to defendant in the twenty (or twenty-three) acres of land in controversy, has proceeded upon the theory that defendant is now entitled to consummate dower in said twenty acres. The defendant, on the other hand, has proceeded upon the theory that defendant and her daughter, Tennessee L. Cave (nee McDonald), who was the sole heir of William McDonald, in the year 1898, when the daughter was nineteen years of age and had attained her majority, and prior to her marriage, by mutual agreement made an oral and voluntary partition of the forty (or forty-three) acres of land of which William McDonald died seized, whereby the daughter, Tennessee L. Cave (nee McDonald), took the equitable title in fee simple to the south twenty acres, free from any claim of right, title or interest therein of her mother, Melissa Wells, and the mother, the defendant herein, Melissa
It is unquestionably and firmly established by the decisions of this court that, while parol partition, consummated by possession and acquiescence under it for any less period than that which is sufficient to make the Statutes of Limitation a bar, does not vest the legal title in sеveralty to the allotted shares, yet such partition, acquiesced in by the parties for a considerable length of time, coupled with exclusive possession of the allotted shares, will estop any person joining in it, and accepting exclusive possession under it, from asserting title or right to possession in violation of its terms. [Petrie v. Reynolds (Mo. Sup.), 219 S. W. 934, 938; Edwards v. Latimer, 183 Mo. 610; Gulick v. Huntley, 144 Mo. 241; Sutton v. Porter, 119 Mo. 100; Nave v. Smith, 95 Mo. 596; Hazen v. Barnett, 50 Mo. 506.] But it has also been held by this court that partition, whether voluntary, or whether involuntary and judicial, implies a joint ownership, in some form, of land, or of an estate or interest in land, and that, inasmuch as parol partition, in the first instance, does no more than effect a severance of possession, it is essential that the parties thereto have a title, in the land, or in the estate or interest in land, so partitioned and divided, with respect to which they are either joint tenants or tenants in common. [Petrie v. Reynolds, 219 S. W. 934,
According to the record herein, William McDonald, the common source of title, and the first husband of defendant, died in the year 1886, sized of forty (or forty-three) acres of land, of which the land now in controversy is a part. In 1887, the General Assembly enacted an act (
But there is a suggestion in defendant‘s answer that the forty (or forty-three) acres of land, of which William McDonald died seized and possessed, constituted and comprised his homestead, for the answer avers that “the dwelling house of the said William McDonald was situated on the land” described as being the south twenty acres of said forty (or forty-three) acres of land. Furthermore, the testimony of several of the witnesses herein, respecting declarations against interest made by Tennessee L. Cave during her lifetime, was that Tennessee L. Cave had declared that she had agreed with her mother, the defendant herein, to “take the twenty acres with the housе and barn on it” and that “her mother gave her the home because it had all the improvements on it,” and also that Tennessee L. Cave had said that “grandma ought to be satisfied, that Ma gave me the home place.” There is no clear and positive evidence in the record, however, that the said forty (or forty-three) acres of land constituted the homestead of William McDonald, at the time of his death. At the time of the death of William McDonald in 1886, homestead in the country, outside of any city, was defined by the then existing statute (
This court has repeatedly ruled that the aforesaid statute vested in the widow an estate in the homestead land for her life, which life estate of the widow in the homestead land is neither divested by her subsequent marriage, nor abandoned and relinquished by the removal of her place of residence from the homestead land; in other words, our settled construction of the meaning and effect of said statute is that the widow of the deceased homestead owner does not abandon and relinquish her life estate in the homestead land, prescribed by said statute, by a subsequent marriage, or by the removal of her permanent residence from the homestead land to that of her second husband, within the State. [West v. McMullen, 112 Mo. 405, 411; Hufschmidt v. Gross, 112 Mo. 649, 658; Wicoff v. Moore (Mo. Sup.), 257 S. W. 474, 476.] If the forty (or forty-three) acres of land of which William McDonald died seized comprised his homestead, then defendant hеrein, as his widow, became vested with a life estate in the whole of said land upon the death of William McDonald, which life estate of defendant was not divested by her subsequent marriage, and which life estate was not abandoned or relinquished by the removal of her place of residence to that of her second husband, L. D. Wells, in the same county of the State. The homestead being the broader estate, it was unnecessary that dower in said forty (or forty-three) acres of land (if said land were, in fact, a homestead) be assigned to defendant, or that she should bring an action for the recovery and admeasurement of her dower therein. [Jordan v. Rudluff, 264 Mo. 129, 135; Falvey v. Hicks, 315 Mo. 442, 461.] If, therefore, the forty (or forty-three) acres of land of which William McDonald died seized compromised his statutory homestead, then his widow, the defendant herein, by virtue of the homestead statute in force and effеct at the time of the death of her said husband, became vested with an estate in said land which she could sell, exchange and convey, and with reference to which she had the right and power to contract. Moreover, Tennessee L. McDonald, the daughter of defendant and William McDonald, as the sole heir of her deceased father, was vested with
The evidence herein tends to show that, in 1898 or 1899, when Tennessee L. McDonald was nineteen years of age, and after she had attained her majority and had become of full age for all purposes (
It is insisted by plaintiff (appellant) that the evidence is not sufficiently clear, cogent, definite and unequivocal as to establish the alleged oral agreement between defendant and her daughter. It is true that the evidence respecting such agreement consists largely, if not almost entirely, of the testimony of witnesses respecting the declarations against interest made by Tennessee L. Cave, the daughter of defendant, during her lifetime. We regard such evidence, however, when viewed and considered in the light of the acts and conduct of the defendant and her daughter with respect to their continuous and exclusive possession, occupancy and use of the respective tracts of land, in severalty, as being substantial and amply sufficient to support the finding of the learned trial chancellor that the oral
All of the equities are on the side of the defendant herein, and if substantial proof had been made on the trial that the forty (or forty-three) acres of land of which William McDonald, the common source of title, died seized comprised his statutory homestead, and that the value of said land at the time of his death did not exceed the value of the homestead land prescribed by the then existing statute (
The judgment nisi is therefore reversed, and the cause is remanded for further proceedings in accordance with the views herein expressed. Lindsay and Ellison, CC., concur.
PER CURIAM:—The foregoing opinion by SEDDON, C., is adopted as the opinion of the court. All of the judges concur.