169 Mo. 258 | Mo. | 1902
— This is a bill in. equity to divest title out of the defendants and vest it in the plaintiffs, and for a partition of the land among the plaintiffs. The land in'dispute is the southeast quarter of the southeast quarter of section 15, township 27, range 27, in Lawrence county. The plaintiffs and defendants are half-sisters and brothers. The plaintiffs being the children of Andrew J. Davidson and his first wife Charlotte, and the defendants being the children of Andrew J. Davidson and his second wife Matilda.
In 1866, Andrew J. Davidson owned three hundred and sixty-seven acres of land, lying contiguous, in sections 15 and 16 of township 27, range 27, Lawrence county. Andrew and his wife Charlotte disagreed and in anticipation of a divorce, which was afterwards obtained, they called in three friends to arrange a settlement of the property. The result was, on September 19, 1866, Andrew conveyed to Charlotte an estate for life in the northeast quarter of the southeast quarter, and in the southeast quarter of the southeast quarter of section 15, containing eighty acres. On the same day, Andrew conveyed to the six living children of his first marriage, the fee to the following described property, reserving, however, to himself a life estate therein, to-wit: the southeast quarter of the southeast quarter of section 16, containing forty acres; also the southeast quarter of the southeast quarter of section 16 (this is a repetition of the land first described); also the northeast quarter of southwest quarter of section 15; also the northwest quarter of southwest quarter of section 15; also the northeast quarter of the southeast quarter of section 15 (this was the first forty conveyed to his wife for life); also the northwest quarter of the northeast quarter of section 15 (he never owned this) ; also the northwest quarter of the northwest quarter of section 15 (he never owned this) ; also seven acres on south side of southeast quarter of northeast quarter of section 16; containing in all 287 acres.
After making these deeds and after the divorce, Andrew married his second wife Matilda, and purchased a tract of 113 acres in section 19, township 26, range 21, in Lawrence county, lying in Brite’s prairie, and established his new home there. Two children (the defendants) were bom of this second marriage, and on May 31, 1894, Andrew and Matilda, his wife, conveyed to them the one hundred and thirteen acres aforesaid, reserving, however, a life estate to themselves therein,’ and also conveyed to- them eighty acres (being the northéast quarter of and the southeast quarter of the southeast quarter of section 15) that Andrew had conveyed in-1866 to his first wife Charlotte for life, subject, however, to Charlotte’s life estate.
After the divorce, Charlotte also remarried, but had no children by that marriage. In February, 1895, Charlotte
After this decision of this court, these plaintiffs brought suit in equity against these defendants, to the February term, 1899, to set aside the deed of May 31, 1894, from Andrew and wife Matilda to the defendants, for the eighty acres and for the one hundred and thirteen, acres, claiming that Andrew was not of sound mind when he made that deed. This suit was afterwards dismissed.
The plaintiffs also instituted another action in ejectment against the defendants for the recovery of the eighty acres aforesaid conveyed to Charlotte for life, returnable to the February term, 1899. In this action the plaintiffs did not claim as remaindermen in fee under the deed from
I.
This is the second appearance of this family quarrel in this court. When the matter was here before this court held that the plaintiffs were not entitled to the eighty? acres conveyed by Andrew to Charlotte for life, on September 19, 1866, but that the defendants were seized of the fee thereto by virtue of the deed from Andrew to them, dated May 31, 1894. [Davidson v. Manson, 146 Mo. 608.] That decision is not res adjudicaia of this case, because the facts presented by this record and the title now asserted by the plaintiffs, are essentially different from the facts presented on former .'appeal and the principles of law then and now applicable are equally different.
Since the former decision of this court awarding the whole eighty acres to the defendants, the plaintiffs have recovered a judgment, in ejectment, against the defendants for the north forty of said eighty acres, and the defendants have abided by that judgment. This was recovered, not upon the title asserted by the plaintiffs in the first ease, to-wit, as remaindermen under the deed from Andrew to Charlotte, but under the deed from Andrew to the plaintiffs which described the said north forty. It will be noted that no such claim or title was asserted or brought to the attention of the court in the first case. This was not the result of
The wholesome maxim, intended to insure the peace and repose of society, “vigilantibus, non dormientibus, subvenient leges ” closes the doors of a court of equity to the plaintiffs’ claim. It has been aptly said that, “only conscience, good faith, and reasonable diligence can call a court of equity into activity, and that stale demands will not be aided where a party has slept upon his rights and acquiesced for a great length of time.” [18 Am. and Eng. Ency. Law (2 Ed.), p. 97.]
Eor thirty-three years the plaintiffs knew, constructively, of the alleged mistake in the deed that they now ask a court of equity to correct. For over twenty years they had actual knowledge of all they now assert. Yet it was not until the seal of death had been placed upon their father’s lips, nor until they had exhausted every other, theory and device to dispossess the defendants from the land in question, that they asked the aid of a court of equity. When their father was still alive they asked him to cause the alleged mistake to be corrected and he refused the request. According to some of the testimony in the case, he lived nearly five years thereafter. At any rate, as long as he lived they did not invoke the aid of the court. Their laches now bars their claim.
• But aside from this consideration, the evidence does not support the plaintiffs’ claim that their father intended to convey to them) the eighty acres conveyed to their mother for life. On the contrary, the sum of the evidence and the physical facts and circumstances clearly show that Andrew never intended to convey to the plaintiffs any part of or interest in the eighty acres conveyed -to Charlotte, and that
The substance of the testimony for the plaintiffs is that when Andrew and his wife Charlotte disagreed and called in the three friends to arrange a settlement of the property, it was agreed that Andrew should convey the eighty acres to Charlotte for life, and the rest of his property should be conveyed to their children in fee subject to' a reserved life estate therein in Andrew. This arrangement was carried out, and the deed from Andrew to his children describes the land conveyed as 287 acres, and reserves a life estate in Andrew. The deed from Andrew to Charlotte created a life Estate in her in the eighty acres. Thus Andrew carved out a life estate for his wife in eighty acres, a life estate for himself in two hundred and eighty-seven acres, and a fee to their children in the two hundred and eighty-seven acres. In this way he disposed of his whole three hundred and sixty-seven acres, except the fee of the eighty acres after the termination of his wife’s life estate therein. This he conveyed to the defendants, his two daughters by his second marriage, in 1894.
It is too plain for debate that Andrew did not intend to convey to his children by his first marriage any part of or interest in the eighty acres conveyed to his wife for life, and that so far from it being a mistake not to include the southeast quarter of the southeast quarter of section 15, it was a mistake to insert in the deed to his children the
Without further demonstration or analysis of the testimony, the conclusion is irresistible that the judgment of the circuit court is erroneous, and that Andrew J. Davidson did not intend to convey any part of the southeast quarter of the southeast quarter of section 15 to his children by the first marriage, but that he did convey the same and intended
The fact that in his deed to tire children of the first marriage Andrew included two forties he never owned and omitted four forties he actually owned, and which he after-wards sold, does not alter this conclusion. Eor the plaintiffs knew for over fifteen years before Andrew died that the four forties were omitted, and if they had desired to correct the mistakes in those respects they should have brought ■suit against Andrew during his lifetime, and have forced him to correct those mistakes and to live up to the arrangement he made with Charlotte when they separated. Both he and Charlotte were then alive and could have been heard. The fact that there was an existing life estate in each tract would not have barred such a suit.
Moreover, it is worthy of note that the deed from Andrew to the defendants for the fee in the eighty acres conveyed to Charlotte for life, was made on May 31, 1894. Charlotte was then alive. She died in February, 1895, and Andrew died in May, 1895. So that the fee to the eighty acres was conveyed to the defendants nine months before Charlotte died and a year before Andrew died. If any just reason could have been given which made it inequitable, unconscionable or wrong for Andrew to convey that fee to the defendants, that reason should have been given while Charlotte and Andrew were alive. Death has sealed their lips and the courts will seal those of their children. If Andrew defrauded his children by including in the deed to them two forties he did not own, and by omitting, and afterwards selling, four forties he did own, this does not authorize a court of chancery, at the instance of those who have slept for thirty-three years on their rights, to remiedy that wrong by taking away two forties that Andrew never intended to give the plaintiffs, from the defendants to whom Andrew did give them, and giving them to the plain
But while the judgment for the plaintiffs must be reversed as to the southeast quarter of the southeast quarter of section 15, it does not follow that it would be equitable to grant the cross-prayer of the defendants, and award to them the north forty, being the northeast- quarter of the southeast quarter of section 15 that the plaintiffs recovered from the defendants in the second ejectment suit in February, 1899. The defendants acquiesced in that judgment, instead of asserting in that case the equitable matters set up in this case, to-wit, that the including in the deed to the plaintiffs of the northeast quarter of the southeast quarter of section 15 was a mistake, and that instead thereof, the northeast quarter of the southeast quarter of section 16 was intended. If such defense and prayer for relief had been interposed by defendants in that case, they would have been entitled to the relief they now ask, but it is now too late. The same maxim of equity that bars the plaintiffs’ claim because of laches, also bars the claim of the defendants to the said north forty.
The judgment of the circuit court is therefore reversed, ■and judgment entered here .for the defendants Martha B. Mayhew and Mary E. Davidson as to the south-east quarter of the southeast quarter of section 15 aforesaid. All com cur.