Fox v. Windes

| Mo. | Mar 18, 1895

Shebwood, J.

Upon the foregoing facts detailed in evidence, we have no doubt that defendant was entitled to judgment. There was no warrant in the evidence on which to base the conclusion that the possession of James M. Lillard was in any sense “permissive’7 after lie had made the two reciprocal deeds of correction of April 10, 1869, and especially after the acceptance of one of them by John M. Lillard, whom we shall presume after such a lapse of time was acting for his brother; Pleasant V. And it will be presumed-, also, that, John M. and his brother having sold the land to Booth, they executed a deed in conformity thereto-, for this was in the usual course of business. Fitzgerald v. Barker, 85 Mo. 13" court="Mo." date_filed="1884-10-15" href="https://app.midpage.ai/document/fitzgerald-v-barker-8008225?utm_source=webapp" opinion_id="8008225">85 Mo. 13.

The deed of correction made at the time indicated, followed by an acceptance and sale of the land by John M. for himself and brother, assisted by his father and Dr. Long, as well as the presumption last aforesaid, constitute evidence, of the most cogent nature, of a ratification of the' correction made in the two deeds. In such circumstances, the possession of the father, James M., was no more “permissive,” as to the rest of the land, than if he had never in the first instance made adeedto his sons. His possession was, therefore, as much adverse toward them as toward anyone else, and the usual consequences would of course attend such adverse possession.

But another view may be taken of this matter which will result as unfavorably to plaintiffs as the former one, to wit: John M. Lillard, by accepting for himself and brother the deed of correction, made the acceptance at the time and the sale thereafter in a manner that precluded [either of them from subsequently asserting anything to the contrary of what might be reasonably inferred from those acts; in a word, that acceptance and that sale constituted an election •and a tacit relinquishment to the property in suit.

On this topic a learned author says: “The doctrine of election is founded upon the principle that'there is an implied condition, that he who accepts a benefit under an instrument must adopt the whole of it, conforming with all its provisions, and renouncing every right inconsistent with them. The principle is recognized and established in this country almost precisely the same as in England, and rests upon the equitable ground that no man can be permitted to claim inconsistent rights with regard to the same subject, and that anyone who claims an interest under an instrument, is bound to give full effect to that instrument as far as he can; A person can not accept and reject the same instrument, or, having availed himself of it as to part, defeat its provisions in any other part; and this applies to deeds, wills, and all other instruments whatsoever.” 2 Herman on Estoppel and Res Judicata, sec. 1028, p. 1156. See, also, 2 Story’s Eq. Jur. [13 Ed.] sec. 1080.

This doctrine of election which prevents the assertion of repugnant rights, is but an extension of the law of equitable estoppel. 1 Herman on Estoppel and Res Judicata, p. 11. And the estoppel was properly pleaded in the answer.

It is proper to say here that it is immaterial whether the alteration in the deeds was the result of original mistake or of a subsequent desire to make a change in the land conveyed, and would not affect the result already announced as to the application of the doctrine of election.

There was no error in refusing to let Parks give his opinion as to the interest of John M. Lillard in the litigated premises. His wife held under the married woman’s act of 1865, and no declarations of her husband could bind her or the land, even while he was living on the premises with her. His sole deed could not affect her interests in the land, and certainly his “word of mouth” could not do more than his deed. Mueller v. Kaessmann, 84 Mo. 318" court="Mo." date_filed="1884-10-15" href="https://app.midpage.ai/document/mueller-v-kaessmann-8008166?utm_source=webapp" opinion_id="8008166">84 Mo. 318, and cases cited. If the declarations or opinion of Parks were inadmissible while living on his wife’s land, as to the nature of her title, then a fortiori were they incompetent after her possession had ceased, and they were attempted to be used against his wife’s grantee.

The court, at the conclusion of the case, made this finding: “The court finds from the evidence in this case that John M. Lillard assented to and approved of the making the two deeds, dated April 10, 1869, read in evidence in this case, by his father, James M. Lillard, and acquiesced in the change intended to be made by James M. Lillard by the said deeds of April 10, 1869, and that plaintiffs are not entitled to recover in this action.”

This finding was not as comprehensive as it should have been, inasmuch as it did not embrace within its scope the acquiescence or election of Pleasant • Y. Lillard, of which there was sufficient evidence as already stated. His death, it appears, occurred in October, 1869, and it is now claimed that, as he died a single man, John M. Lillard inherited a portion of his brother’s interest, and as his father died in 1882, and his mother in 1886, he inherited a portion of their interests in the disputed premises. Respecting this claim, it may be said that-this cause was not tried on that theory in the lower court. Moreover, the considerations heretofore adverted to of election and of the statute of limitations, effectually cut off any right which those claiming under Pleasant Y. Lillárd had. Under this view, the point that the finding of the court lacked in comprehensive-' ness becomes immaterial.

Nor does it affect either the question of election or of the statute of limitations that all the money paid by Booth to James M. Lillard, for the land the latter had deeded to his sons on the tenth day of April, 1869, was not transmitted by him to his sons in Texas; the question of the disposition of the proceeds of such sale was one between the father and his sons, just as it would have been between any other agent and his principals. Long v. Mining Co., 68 Mo. loc. cit. 433.

It is unnecessary to discuss the declarations of law given or refused. Under the evidence, the finding could not have been otherwise, and, when this is the case, it is our custom to treat errors in giving or denying declarations of law or in giving or denying instructions, as harmless. Fitzgerald v. Barker, 96 Mo. 661" court="Mo." date_filed="1888-10-15" href="https://app.midpage.ai/document/fitzgerald-v-barker-8009432?utm_source=webapp" opinion_id="8009432">96 Mo. 661; Greer v. Bank, 30 S. W. Rep. (Mo.) 319 and cases cited. Holding these views, we affirm the judgment.

All concur.