217 Mo. 14 | Mo. | 1909
Plaintiff sued in ejectment for eleven acres of land in Clinton county. The petition is an ordinary petition in ejectment. The answer is first a general denial. By a second count the defendant pleads that he went into possession of the land in dispute under a certain written instrument of date December 8, 1877, the material part of which reads:
“To have and to hold unto the said Josiah Delaney, his heirs and assigns for and during the life*20 time of the said Uriah Delaney and Mary A. Delaney, and at the death of said parties the said land to revert to and become the estate of said parties or either of them, the said Josiah to have all the improvements by him placed thereon or at his term hereof to be paid therefor their reasonable worth. The said Josiah Delaney to have the further privilege of taking and keeping said tract of land in fee simple by paying the reasonable value therefor, at the end >of this term or 'to deliver it up, reserving all improvements at his discretion.
“Witness our hands and seals this 8th day of December, 1877,
“Uriah Delaney,
“Mary A. Delaney.”
He then avers that such instrument was placed of record April 1, 1883; that in pursuance thereof he not only entered into the possession of said land, but placed valuable improvements thereon to the value of $300.
By another paragraph, denominated a further and another answer, it is averred that Mary A. Delaney and Uriah Delaney are now dead; that after the .death of Uriah Delaney, the wife, Mary A., married one Sterling, but thereafter, in the year 1904, departed this life; that there has been no administration upon her estate, and that she left heirs at law; that after the death of the said Mary A. this defendant has been ready and willing at all times to pay her heirs the reasonable value of said land.
The third defense is thus stated: “Defendant for further answer to plaintiff’s petition says, that on the 1st day of May, 1895, the said Mary A. Sterling and her husband conveyed to said plaintiff thé said eleven acres of land described in plaintiff’s petition, together with other- lands; that at the time of the making of such deed, as aforesaid, the said Mary A. Sterling was without authority to make such deed and could
By the prayer of the answer it was asked that the deed described in that portion of the answer last-above set out be canceled so far as it related to the land in dispute; that the heirs (who by the way are not parties to the suit)he required to specifically perform the contract, and upon their refusal that the court “adjudge and decree the title to plaintiff in accordance with the contract” and for all further just and proper relief.
Reply is first a general denial, followed with this additional language: “Further replying the plaintiffs say that if it is true the defendant had at one time the option mentioned in said lease contract, still the plaintiff avers that the defendant at the time and after the death of Mary A. Sterling declared that he would not accept the proposition to purchase said land under and by virtue of said option but that he then and ever since that time asserted the absolute ownership of said land up and until after the trial of this case at the last term of this-court at which time he filed his amended answer. Plaintiff says that defendant is estopped by his said conduct in repudiating said contract of option and that if he had any rights thereunder he had by such conduct waived the same. "Wherefore the plaintiff renews his prayer of judgment.”
By the bill of exceptions, No..2, as it seems to be designated in print, it appears thus:
“Defendant strikes out of his amended answer all of the first count after the general denial in regard to the improvements put on the real estate and elects to stand upon the last count in the answer.
“It is agreed in open court by and between the attorneys for plaintiff and defendant that the evi*22 dence heretofore taken in this case shall, as far as applicable, apply to this case also.”
On April 19y 1906, the judgment appealed from was entered. The case was tried at the January term, or the evidence was taken at that term. The judgment seems to be the second judgment entered in the cause at the April term. Omitting the description of the land, the present judgment reads:
“Now at this day comes the plaintiff by his attorney of record, and also comes the defendant by his attorney of record. And the plaintiff by leave of court withdraws his motion for a new trial herein and the court having considered the entry of judgment heretofore made herein at this term does here now set said entry aside and enter in lieu thereof and as and for the judgment in this case its judgment and decree as follows: Prom the pleadings and evidence adduced thereunder the court finds that the plaintiff is the owner and has all the right, title and interest in and to said land, subject to the right of defendant to take the same by paying a reasonable value for same, of the land described in the petition, to-wit, . . . That Mary A. Sterling is the common source of title and that plaintiff has purchased all the title of said Mary A. Sterling, that the value of the rents and profits of said land is ten dollars.
“The court further finds that under and by virtue of the lease offered in evidence the defendant is entitled to purchase all said land from the plaintiff at the reasonable value thereof; that the reasonable value of said land at the death of said Mary A. Sterling fifty dollars per acre amounting in the total to five hundred and fifty dollars; that after the death of said Mary A. Sterling and before filing his petition herein the plaintiff called upon the defendant and asked him what he was going to do under the terms of said lease, and that the' defendant at that time refused to do anything but claimed to own the land*23 in suit. The court further finds that the defendant should pay the costs of this suit.
“Wherefore it is ordered, adjudged and decreed by the court that the plaintiff have and recover of the defendant thé said sum of five hundred and fifty dollars and the costs of this suit; that the defendant may pay the sum of five hundred and fifty dollars, together with the costs, of this suit, to ■ the clerk of this court forthwith, which sum of five hundred and fifty dollars shall be paid to the plaintiff by the clerk upon the delivery to him by the plaintiff of a sufficient deed of conveyance of such land as above described to the defendant whereby plaintiff shall convey all his right, title and interest in and to said land to defendant, and which deed the clerk shall deliver to the defendant.
“It is further ordered and decreed that in case the defendant fails, neglects or refuses to pay such judgment then in such case the plaintiff shall have his writ of special execution against said lands and execution for all costs herein by him expended. ’ ’
We set out the judgment because challenged in the briefs.
There is but little conflict in the testimony. It all shows that defendant took possession, under the lease or written instrument pleaded; in 1877, and has held possession ever since. This instrument was of record. It also shows that ten or twelve years prior to her death, Mrs. Sterling, formerly Mrs. Delaney, made the plaintiff a deed to this land, with sixteen acres adjoining it. Some five years before the suit she made a deed to defendant for the eleven acres, reciting the obligations in the lease, but for this deed defendant paid nothing. For his deed plaintiff paid $250 for the twenty-seven acres.
Two disputed points in the testimony are: (1) Plaintiff says that after the death of Mrs. Sterling he asked defendant if he would purchase the land under
Further portions of the evidence will be noted in connection with the points made.' For the present this sufficiently states the case.
I. Point is made that we can’t consider the bill of exceptions. This case has several peculiar features. From this judgment it appears'that the plaintiff was not satisfied with the first judgment of the court, and filed a motion for new trial. Then the plaintiff withdrew his motion, and thereupon the court of its own motion set aside the judgment (what it was does not appear) and immediately entered the judgment herein-above set out.
It also appears that prior to January 27th some evidence had been taken in the case. "Whether this was at the January term or not we do not know, except counsel for plaintiff in their brief say the cause was heard at the January term, 1906, and taken under advisement until the April term, when the judgment appealed from was entered. At that time defendant took leave to file a bill of exceptions during the September term, 1906, and the record entry shows that a bill of exceptions was filed at the September term in open court. In the statement we have set out in part what occurred on January 27, 1906. Then it appears that the defendant abandoned a part of his answer, and it was agreed that evidence theretofore taken should be considered in so far as applicable. This appears on page 57 of the printed record. At that point is where begins what is called a second bill
We shall consider the bill of exceptions as properly a part of the record for our review, if such becomes necessary.
II. It is next contended that because the abstract of record does not set out the affidavit for appeal,
“Defendant now files an affidavit for an appeal of this cause, and it is ordered by the court that an appeal of said cause be allowed to the Supreme Court, appeal bond fixed at $1,100' which is now filed with Josiah Delaney as principal and George W. Delaney and Joseph Delaney as security; which bond is now approved. ’ >
The first part of the record entries recites the overruling of the motions for new trial and in arrest of judgment, and the latter part ■ the leave to file a bill of exceptions at the September term. This point has been fully covered by Valliant, C. J., in an opinion In Banc, and further discussion is not required. [State ex rel. Annie Brown v. Broaddus, 216 Mo. 336.]
This contention of respondents is therefore refused.
III. Plaintiff has insisted that we have nothing before us but the record proper, which insistence we have overruled, but the defendant challenges the sufficiency of the judgment, even on the face of the pleadings. Defendant contends that plaintiff has sued to eject the defendant from this land and has wound up without any judgment for possession, but with a money judgment for $550' and an award of a special execution against the land and execution for all costs. The judgment is awkwardly worded, but it is certainly erroneous on the face of the pleadings. Under the pleadings, but two things, outside of costs, could be involved in this case. First, was the plaintiff entitled to possession? If so, he was entitled to- a judgment of possession, and not one ordering a special execution against the lands. Under his petition, if plaintiff was entitled to anything it was an absolute judgment of possession. This is the scope of a judgment based
Not only so but the wording is such as to make it a general judgment of $550‘ against the defendant. It says: “Wherefore, it is ordered, adjudged and decreed by the court that the plaintiff have and recover of the defendant the said sum of five hundred and fifty dollars and the costs of this suit.” It is true that the last clause provides for a special execution but there is nothing releasing the general judgment first above written.
Had the judgment recited that defendant had exercised Ms option to buy, and that thereby the equitable title was in him, and then made the assessed value a lien, and directed special execution, then it may be
IV. Plaintiff by his proof undertook to deraign title from the United States. The title passes regularly from such source to one George Mayes. George Mayes died, leaving five children and a widow. The children were Sarah A. Hill, Máry A. Delaney (plaintiff’s grantor and defendant’s lessor), William A., James E., and John D. Mayes and the widow Rhoda Mayes: Upon the death of Mayes, the widow elected to take a child’s part. This election was filed January 10, 1872. This left the land to be divided into six parts. January 11, 1872, George E. Mayes conveyed his interest to Rhoda Mayes, the widow. April 8, 1874, Sarah J. Hill and William A. Mayes conveyed to John D. Mayes' and Uriah Delaney (the latter the' father of defendant and one of his lessors) their interest. The deed calls it a two-fourths interest, but under the facts it could only be a two-sixths interest. By this conveyance it will be observed that Uriah Delaney acquired an undivided one-sixth interest in this land. November 24, 1883, John D. Mayes conveys by deed to Mary A. Delaney. The deed recites a one-half interest, but in fact John D. only held a one-sixth interest as the child of George Mayes and' an additional one-sixth acquired in the deed to him and Uriah Delaney from Sarah J. Hill and William A. Mayes. Mary A. Delaney, therefore, acquired by the deed from John D. Mayes only a two-sixths interest, and as the child of George Mayes she inherited a one-sixth interest, making her in all a three-sixths or one-half interest, The paper title therefore appears: One-half interest in Mary A. Delaney (later intermarried with Sterling), or the same interest in her heirs or assigns,
There is an attempt to prove a parol partition of the Mayes estate. The date thereof is not fixed, but it was perhaps after the death of Ehoda Mayes. The witness when asked who divided the land replied, “The heirs.” This is as near as the partition agreement is shown or the parties thereto. By the record title Uriah Delaney was a cotenant, but nothing before' us shows that he participated in this parol partition. It is requisite to a valid parol partition that all the cotenants be parties to the agreement and to the act of partition. Such does not clearly appear in this ease. Speaking of parol partitions, 21 Am. and Eng. Eney. of Law (2 Ed.), 1135, says: “It is, of course, necessary to a valid partition between cotenants that all of those owning interests in the property should be bound thereby. If the partition or agreement for partition is not binding upon all the cotenants it is
It' may be that Uriah and Mary A. Delaney so claimed tbe possession as to make it adverse even as to a cotenant, but tbe Statute of Limitations is not pleaded nor does tbe proof' seem to have been much developed on that theory. It could bardly apply to tbe interest of Uriah Delaney to say tbe least.
V. It is insisted that we construe tbe written instrument relied upon by tbe defendant.
That portion of tbe lease following tbe description we have set out in our statement of tbe case. The part preceding tbe description reads:
“Know All Men By These Presents, That Uriah Delaney and Mary A. Delaney, bis wife, in Clinton county, State of Missouri, in consideration of tbe love and affection we ■ bear to our son Josiab Delaney, as well as in consideration of tbe sum' of one dollar, to us in band paid, do hereby convey and lease to tbe said Josiab Delaney, tbe following described tract of land situate in Clinton county, Missouri, to-wit . .
We thus have tbe full instrument, barring tbe description of tbe property set out herein. In our judgment tbis written instrument is dual in character. First, it creates a leasehold in tbe grantee until such time as tbe survivor of tbe two lessors died. Second, by tbe last clause thereof, to-wit: “Tbe said Josiab Delaney to have tbe full privilege of taking and keeping said tract of land in fee simple by paying tbe
One of the best discussions of a contract of this character we have found is in the case of Ide v. Leiser, 10 Mont. 5, wherein many authorities are by the court cited. Dewitt, J., in that case says: “We believe some definitions and distinctions will aid this discussion. There may be first, a sale of lands; second, an agreement to sell land; and third, what is popularly called an option. The first is the actual transfer of title from grantor to grantee, by appropriate instrument of. conveyance. The second is a contract to be performed in the future, and, if fulfilled, results in a. sale. It is a preliminary to a sale, and is not the sale. Breaches, rescission, or release may occur, .by which the contemplated sale never takes place. The third, an option, originally is neither a sale, nor an agreement to sell. It is simply a contract, by which the owner of property (real estate being the species we are now discussing) agrees with another person that he shall have the right to buy his property, at a fixed price, within a time certain. He does not sell'
This case we cited with approval in the case of Montgomery v. Hundley, 205 Mo. 138, which was a case involving an option contract. Both the Montana case and ours should be read in the light of the facts. In each the option contract was for a limited time. The general policy of the law is against unlimited restrictions upon the right of alienation. We do not mean, however, that for a valid consideration, a person may not agree that he will not sell his property during his lifetime, and may not agree in his lifetime that a certain person shall have the right to say whether or not he will take the property at his death at a stipulated or an agreed price. If such agreement is made in writing, and placed of record, as in this case, it would no doubt bind both the heirs and the administrator or executor of the party making it.
The broad language used in the cases cited to the effect, “the owner parts with his right to sell his lands (except to a second party) for a limited period,” should be considered as having reference to an unrestricted and absolute sale. They should not be construed to mean that there could not be a disposition of the owner’s rights in the property, subject to the option contract. In the case at bar, Mrs.
In the deed to plaintiff it specifically stated: “This deed is made subject to the provisions in a certain instrument recorded in Book 43. at page 201, whereby 11 acres of said land was limited to one Joseph Delaney during the life of Mary A. Delaney and Uriah, her then husband. ’ ’ This refers to the instrument relied upon-by the defendant, and this deed shows that Mrs. Sterling was only attempting to convey what interests might be left to ■ her. When plaintiff took this deed with the provisions therein contained he, as the assignee of Mrs. Sterling, accepted her shoes in so far as this land is concerned, and the encumbrances thereon created by the lease and option contract.
Defendant contends that she had no right to sell at all and her deed conveyed nothing to the plaintiff. This we think not well taken. By defendant we are cited to the case of Harris v. Vinyard, 42 Mo. 568, and cases following it. In the Yinyard case it was held that where the defendant held possession by a written contract of purchase from the ancestor, such contract of purchase would defeat ejectment by the heir.
By counsel for plaintiff we are cited 'to authorities wherein life estates have been created by deeds and remainders reserved which are likewise inapplicable to the case at bar, or to the peculiar written instrument involved herein.
Whilst we are of opinion, as first indicated herein above, that the judgment should be reversed upon the face of the record proper, we have gone into other matters which would necessarily be involved upon a retrial of the cause. With these suggestions there should be no trouble in so adjusting the pleadings and the proof as to reach the real merits of this controversy as well as the real parties in interest, if they are not in fact before the court.
The cause will be reversed and remanded for further proceedings in conformity to the views herein expressed.
