183 Mo. 610 | Mo. | 1904
This is a suit for the partition of the real estate devised by Mrs. Mary A. Latimer, of Pike county, to her two children, John E. Latimer and Mrs. Fannie Edwards.
John H. Latimer died about the year 1876 seized in fee of 407.85 acres of land in Pike -county, which comprised two tracts separated by a public road, one tract of 160 acres, and the other 247.85 acres.
John H. Latimer left a widow and five children. His widow elected to take a child’s part. In the settlement of the estate among themselves Z. Taylor Lati-mer, the oldest child, took his entire portion in money
On May 29, 1886, Mrs. Mary A. Latimer made a will by which she devised to Fannie, then single, and to John E., her son, all her interest in the 407.85 acres. In 1894 John E. Latimer, being desirous of selling the 160-acre tract, which has a house on it, his mother made a deed to him of her three-fifths of the 160 acres, for the recited consideration of love and affection and one dollar. It is alleged by the plaintiffs that prior to said conveyance and to better enable John E. Latimer to sell his share of said 407.85 acres, a mutual partition of said lands was made between Mrs. Mary A. Latimer and her son John E. Latimer, and each contracted to convey to the other as follows, to-wit, said Mary A. Latimer agreed to convey her three-fifths in the 160 acres to her son and he agreed to convey to his mother his two-fifths of the 247.85 acres, and in March, 1894, Mrs. Latimer did convey her three-fifths in the 160-acre tract to hex-son, but that he neglected to convey his legal title to his two-fifths in the 247.85 aci-es to her, but that in pursuance of said agreement and contract, defendant,' the said John E. Latimer, delivered possession of his said interest in said 247.85 acres to his mother, and she took and remained in sole and exclusive control and possession of said 247.85 acres in fee simple ever thereafter, and defendant represented to her in her lifetime that it was not necessary to make a deed to her of his two-fifths in said 247.85 acres, but that she had the full legal and equitable title to said tract without any other conveyance.
Plaintiff prayed for a decree divesting defendant of the record title to one undivided one-fifth interest in said 247.85 acres and vesting the title thereto in plaintiff, and for a judgment that John E. Latimer and Fannie Edwards each is entitled to one undivided one-half of said 247.85 acres, and for partition between them as aforesaid and that as the same could not be partitioned in hind, that the said land he sold, and, after paying the costs, that the proceeds he equally divided between the two, and for all proper relief.
Defendant denied that he and his mother made a voluntary partition as alleged; admits he and his mother owned the lands described in the petition; denies that for any valuable consideration he agreed to convey his undivided two-fifths in said 247.85 acres to his mother.
Further answering he says his sister and himself are entitled by the will of his mother to whatever interest his mother owned in said tract of 247.85 acres; that on March 23, 1894, his mother for love and affection conveyed her interest in the 160-aere tract, and the same was a gift to him by her, and by him accepted as such; that at the death of his mother defendant owned in fee simple an. undivided five-twelfths in said 247.85 acres, and his mother seven-twelfths therein; that since the death of his mother he is the owner of seventeen twenty-fourths of said tract of 247.85 acres, and the plaintiff Fannie Edwards is the owner in fee simple of seven twenty-fourths thereof. He prays the court to adjudge their respective interests accordingly and decree partition in hind.
The following facts were found by the circuit court and the evidence fully justifies its findings.
“In March, 1894, the widow, Mary A., resided in the town of Bowling Green, Missouri, a few miles from the land in controversy. She had lived there since about the year 1877 or ’78. During the whole time of her residence in Bowling Green, the defendant, John Latimer, made his home with her. Fannie Edwards and her husband also lived with Mary A. until about four years before the latter’s death, which occurred December 19, 1900. Fannie was the youngest child. Up to a few years before her death, Mrs. Mary Latimer was able to and did attend to her business affairs, loaning and collecting money, renting the farm and collecting rents. The actual operations on the farm, both prior to and after the deed from Mary A. to John, in the way of making arrangements for repairing the fences, taking in and caring for stock and collecting rents was to a great extent superintended and conducted by John. During the last five or six years of her life, Mrs. Mary Latimer was afflicted with dropsy and heart trouble, her physical condition being such that she could not go out to the farm. The 160-acre tract was improved, having on it a dwelling house and barn. The 247.85-acre tract was, with the exception of fencing, unimproved. At' one time a small cabin, occupied by a negro, had stood on it, but this burned down, just when does not appear. On the twenty-third day of March, 1894, the widow, Mary A. Latimer, executed to her son John, the defendant, her deed to her undivided three-fifths interest in the 160-acre tract. The plaintiffs contend that in March, 1894, the defendant and his mother made a parol
“The defendant never did execute to his mother any deed for his interest in the 247.85-acre tract. Is the plaintiffs’ contention supported by evidence so clear, cogent and conclusive as to leave in the mind of the chancellor, no room for reasonable doubt? In reviewing the entire evidence in the case the court finds that in 1886, Mary A. Latimer prepared her will, which contained among other provisions, the following, viz.:
“ ‘I will, bequeath and devise unto my son John Latimer and my daughter Fannie all my interest in and to the old home farm, the same being about four hundred acres in township 52, range 3 west, being the land owned by my husband at the timé of his death. ’
“This will after the death of testatrix was duly probated, and is the same will read in evidence. At its date the widow then owned an undivided three-fifths interest in the 407.85 acres. . Prior to the death of Mary A. the provisions of the will were in part at least known to the daughter Kate, if not to Fannie. In the early part of March, 1894, the plaintiffs went to California on a visit. Up to this time the relations between Fannie and her mother and brother John were friendly and cordial. The plaintiffs were in California about two months. Shortly after they left home the defendant secured the execution by his mother of the deed in controversy. The plaintiffs learned of the fact from an
“Prior to 1894, the Latimer lands were assessed to the estate of John H. Latimer, deceased. After 1894, the land in controversy was assessed to Mary A. Lati-mer, or to her estate. In 1895 or ’96, John sold the 160-acre tract to J. E. Stewart. In his sworn assessment lists for 1899 and 1900, John did not return the land in question, or as having any interest in the same. In the assessment list of Mary Latimer for 1899 the 247.85-acre tract is returned as her property, and the list is signed and sworn to by John E. Latimer before Ollie Parker, the assessor. Mrs. Mary Latimer’s assessment list for 1900 included the same land and was signed and sworn to by her. The assessment lists for 1898, 1896 and other years after 1894, were signed in the name of
“The greater weight of evidence shows that after the deed from Mary A. to John, the former had control of the 247.85-acre tract, and leased it at various times to different tenants. John looked after the place for his mother. This continued up to the last two or three years before the widow died, during which period she gave John the rent that came into his hands from the place to keep up the place and pay the taxes. George Schwegman, a witness for defendant, testified that some time after 1894, he rented the 247.85-acre tract' from John, and paid him the rent.. This was about 1897, and John looked after the place and the stock and had witness fix the fences, for which John paid him; that John pastured his stock on the place. • This witness’s testimony is weakened by his contradictory statements. He first said he ‘ understood Mrs. Latimer owned the place ’ then he said he ‘didn’t know anything about it.’ J. E. Stewart, witness for defendant, says John ‘has exercised control of that place during the past five years, and how much longer, I don’t know. ’ That J ohn rented the lands and collected the rents. That he understood the land belonged to the Latimers, but which one he could not state. That he never heard John say anything about owning the place. The. witness Burk, witness for defendant, had rented the place off and on for ten or eleven years. The last renting was after 1894, when he made his arrangements with Mrs. Latimer for the land. He says, ‘I told her to let me know, and she let me know by J ohn what I could have. ’ This witness also states that he heard Mrs. Latimer state that she
“On one occasion the widow Latimer according to the testimony of Albert Latimer, who is the administrator upon his deceased mother’s estate, told him that 'she was satisfied John ought to have the 160 acres; that she ought to favor him that much in deeding him the 160 acres. But in the same conversation he says, ‘I am telling what some other said.’ ‘She said this herself that there had been some dissatisfaction, but she was satisfied and was going to let it stand.’ This witness (Albert) denies that he was present at a conversation which
£ ‘ Tbe matter in issue between tbe plaintiffs and defendant being tbe alleged parol partition, and Mrs. Mary Latimer being one of tbe original parties to tbe same, she being dead at tbe time of tbe trial, tbe defendant being tbe ‘other party,’ was incompetent as a witness in tbe cause. His evidence over tbe objections of tbe plaintiffs was admitted, subject to tbe final decision of the court as to its competency. Tbe court further bolds that plaintiffs did not waive their said objections by cross-examining tbe defendant. They were not apprised as to what tbe ruling of tbe court would be on tbe question of competency; and ini case tbe defendant should be held a competent witness, they were entitled to tbe benefit of bis cross-examination.
“Tbe court finds from tbe evidence in tbe cause that in March, 1894, Mary A. Latimer and John Lati-mer made a parol partition between themselves of their then said respective interests in tbe 407.85 acres aforesaid ; tbe said John, under such partition, taking tbe said 160-acre tract, and tbe said Mary, under such partition, taking tbe said 247.85-acre tract, thereby severing their joint possession, as tenants in common, in and of the original 407.85 acres, and that thereafter tbe said Mary remained in sole possession and control of said 247.85-acre tract until her death, and that after such parol partition, whatever acts of control or supervision were done, performed or exercised by John Latimer over said 247.85-acre tract, were so done, performed and exercised by him as agent for bis mother. That upon such parol partition being made as aforesaid, tbe said John Latimer became and was entitled to a deed from tbe said Mary A. Latimer conveying to him her legal title to her three-fifths interest in and to the 160-acre tract; and on tbe twenty-third day of March, 1894, tbe
“The defendant contends that no other or different consideration can be shown, and that the transaction must be conclusively presumed to be a gift. ‘In many states, parol partitions are recognized and protected and a deed of partition, though insufficient of itself to consummate a partition, may, taken with other evidence, establish such a parol partition as the courts will not permit to be disturbed, unless it was clearly unequal when made’ (cited in Sutton v. Porter, 119 Mo. 100, 104). Winningham v. Pennock, Exr., 36 Mo. App. 688, was a case where the grantee in a deed brought suit against the grantor for a breach of the covenant against encumbrances; the defendant pleaded that the deed was voluntary and that there was no consideration to support the covenant. Judge EllisoN rendering the opin
“The court finds that upon the death of Mary A.
One of the principal contentions of defendant is that parol evidence was not admissible to show that the deed made to him by his mother, Mrs. Mary A. Latimer, was in consideration of his giving her his interest in the 247.85 acres, because her deed to her three-fifths in the 160 acres recites the consideration, as “love and affection and one dollar;” that the consideration being love and affection, to allow it to be shown by parol that it was an exchange of land would show a consideration inconsistent with and contradictory of the consideration stated.
The general rule in this State is that the consideration clause of a deed is open to- explanation; that is to say, that while it is not allowable to show no consideration for the purpose of defeating the operation of the deed as a grant, the true consideration may be shown. Thus in O’Day v. Conn, 131 Mo. l. c. 327, it was said: “It is now well settled that ‘not only the amount of the consideration may be questioned by oral testimony, but the parties are not estopped from showing the character of the consideration to be different from that stated. ’ ’ ’ [Hollocher v. Hollocher, 62 Mo. 267; Fontaine v. Bank, 57 Mo. 552; Henderson v. Henderson’s Exrs., 13 Mo. 151; McCrea v. Purmort, 16 Wend. 465; Laudman v. Ingram, 49 Mo. 212; Jackson v. Railroad, 54 Mo. App. 642; Squier v. Evans, 127 Mo. 514.]
The evidence offered by plaintiff and admitted by
II. It is glso urged by defendant that the court erred in excluding him as a witness. When he was offered as a witness plaintiffs objected on the ground that as the only controversy between the parties was as to the contract between him and his mother as to the consideration of his deed for the 160 acres, which plaintiffs insisted was the conveyance by defendant of his two-fifths interest in the 247.85 acres, and on the part of defendant that it was a gift pure and simple. The court did not rule finally on the objection, but took the evidence subject to objection and finally held that defendant was incompetent for any purpose. But the record discloses that while the plaintiffs knew defendant was incompetent as to the contract made between him and his mother and had objected to him as incompetent, they permitted him to testify and deny conversations and declarations which had been testified to by Mrs. Ed
If plaintiffs desired to insist on their objection they should have been consistent and not invited the very character of evidence which they were urging was incompetent. But while the court finally excluded all the evidence of the defendant as incompetent, still it was admitted and is preserved in the record, and we are at liberty in an equity ease to consider it under such circumstances, and giving it due consideration with all the other evidence in the case, still we think the finding of the court was right and the decree ought not to be reversed because the circuit court excluded defendant’s testimony after hearing it. If the cause should be reversed because he was not permitted to testify, clearly on the next trial the objection would be renewed and his evidence excluded. [Cox v. Sloan, 158 Mo. 429; Sheridan v. Nation, 159 Mo. 41.]
Upon a review of the whole testimony and deferring largely to the superior opportunity of the trial court of seeing the witnesses and observing their manner of testifying, we are of opinion there was sufficient evidence to justify the decree. We think the evidence
We think the evidence cogently demonstrates outside of the evidence of Mrs. Edwards and the defend