220 Mo. 217 | Mo. | 1909
This suit was instituted by the respondent, Joannie Freeland, widow of John H. Free-land, to establish a resulting trust in plaintiff in an eighty-acre tract of land described in the petition. The defendants are the eight children of the plaintiff and her said husband, together with the husbands of the married daughters. Two of the defendants, Aretha Swan and her husband, after the death of John Freeland, and before the institution of this suit, had conveyed the supposed undivided interest of the said Aretha Swan in the land in controversy by trust deed to J. E. Weller, as trustee, to secure a loan made to said Aretha Swan and her husband by Charles Chase, the beneficiary of said trust deed, and Weller and Chase were also joined as defendants.
The suit was brought in the circuit court of Holt county to the August term, 1905, and at the January term, 1906, of said court, the cause was tried and a decree rendered divesting defendants, except as to Weller and Chase, of all right, title and interest in and to said land and investing the same in plaintiff, as prayed in the petition.
Of the eight children and defendants only three daughters and their husbands contested the suit in the trial court, and these also alone appealed from the judgment and decree rendered, to this court.
It is alleged in the petition that the plaintiff and John H. Freeland, deceased, were married in the year
It is also alleged that one of the said children, to-wit, Aretha Swan, and her husband, after the death of her father, conveyed her undivided interest to said land to James E. Weller, as trustee for Charles Chase, to secure a loan made by the latter to the said Aretha Swan and her husband. It is also alleged’that the defendant, Grover Freeland, was a minor, and plaintiff prayed the court to appoint a guardian ad litem -to protect and defend the interest of the said Grover Freeland in the suit.
The prayer of the petition was that the defendants be divested of all right, title and interest in the eighty-acre tract of land therein described, and that the same be vested in the plaintiff.
Frances Williamson, Ella Craytor and Aretha Swan, and their respective husbands, filed separate answer containing several defenses:
1. Denying that plaintiff or her father furnished the money to purchase the land in controversy, or any part thereof, and denying that the deed to said land was by mistake made conveying title thereto to John H. Freeland, and alleging that the money and funds used in the purchase of said land were the property of and furnished by the said John H. Freeland.
2. That defendants, Aretha Swan and her husband, conveyed the undivided interest of the said Aretha Swan to J. E. Weller, as trustee, to secure a loan made by Charles Chase to the said Aretha Swan, and that such conveyance in trust was made in good faith and without knowledge of any claim of title or right by plaintiff.
3. A defense in the nature of an estoppel, on the ground that plaintiff had qualified and acted as administratrix of her husband’s estate, and, as such, inventoried and treated the land in controversy as belonging to the estate of her late husband.
4. That John H. Freeland, deceased, purchased certain town property in the town of Maitland, and that such property Was deeded to plaintiff in satisfaction of all claims of plaintiff against her husband.
5. That by reason of the long lapse of time since the creation and establishment of the alleged trust,
6. A defense of the ten-year Statute of Limitations, the twenty-four year Statute of Limitations, and that more than three years had elapsed after any disability that plaintiff may have had, had been removed.
James E. Weller and Charles Chase filed separate answer, alleging that the loan had been made to the defendants, and secured by trust deed, as heretofore stated.
A guardian ad litem was appointed by the court to represent the minor defendant, Grover Freeland, and it is shown in the record that the said' minor defendant arrived at his majority before the trial, and personally appeared and defended in his own right.
The defendants, Edith Freeland, Rhoda Freeland and Lucy Van Dyke, did not file answer, but were present at the trial and testified as witnesses in behalf of the plaintiff, their mother.
The evidence on the part of the plaintiff tended to prove that her maiden name was Joannie Miller. In 1861, she was married to John Freeland, at Johns-ville, Ohio. John Freeland had a small grocery store at the time. Later on he enlisted in the Federal army, during the war between the States from 1861 to 1865. He was a éorporal. In 1868, John Freeland and John and William Spencer, each of whom had married a daughter of Andrew Miller, in Ohio, removed to Missouri and settled in Nodaway county near Graham. An acquaintance of theirs by the name of Kaufman had preceded them to this State. The two Spencers invested in lands. John Spencer bought some timber land. Freeland seemed to have had very little property of any kind outside of a set of carpenter tools and his gun. About a month after they had located their wives joined them. Mrs. Freeland, the plaintiff, sold her furniture and paid her traveling expenses out of the
On the part of the defendants, it was shown that the plaintiff, as administratrix of her husband, made an inventory, in which the'land in dispute was listed as belonging to her husband’s estate, and in her settlements she was allowed credits for taxes and repairs made on the farm.' On the other hand the evidence tended to show that while she claimed these credits she paid the same out of her rents and products from the farm, and that she signed the papers without understanding the effect of her charges and that at all times she thought the deed to this land was in her name. The circuit court decreed the land to the plaintiff, but rendered a decree in favor of Chase and his trustee as to the deed of trust given by one of the debtors, Mrs. Aretha Swan and her husband, upon her undivided interest in the land, the court holding that Chase was an innocent purchaser for value and without notice.
■I. It is insisted that the court erred in rendering a decree against all of the defendants for the reason that four of the defendants were not lawfully served with process in the case. The three defendants who are appellants in this cause do not challenge the service of process, as to themselves. They appeared and* filed their answers and' contested the case.' The record recites that all the defendants were duly served with notice of summons as required by law. No objection was made to the service or to the return thereof at the trial, nor was the matter called to the attention of the court in the motion for new trial. The sufficiency of the summons as to the nonresident defendants and the return thereof is presented for the first time in this court. The record discloses that Aretha Swan, George Swan, J. E. Waller and Charles Chase, were each duly summoned on original writs of summons to Holt county, and that Ella Cray tor and Joseph Craytor were duly summoned by writs issued to Nodaway county, and Edith Freeland, Rhoda Freeland and Grover Freeland were duly served on summons issued to Buchanan county. Frances Williamson and John Williamson her husband, Laura McMillen and A. Y. McMillen her husband, Lucy Yan Dyke and William Yan Dyke her husband, were alleged to be non-residents of Missouri, and special service against them was prayed as provided by section 582, Revised Statutes 1899. The clerk issued a writ of summons as to these last named defendants, directed to the sheriff of Douglas county, Hlinois, to which was attached a copy of the petition, and the sheriff returned that he served the same by delivering a true copy of said petition and summons to the said Laura McMillen, A. Y. McMillen and Lucy
In Dickerson v. Chrisman, 28 Mo. l. c. 141, Judge Scott, speaking for this court, said: “Tbe rule that a judgment is an entire thing and if reversed as to one must be reversed as to all, is one only applicable to judgments in courts of common law jurisdiction; or, in other words, to judgments at law. Tbe answer of tbe defendant converted this proceeding, in effect, into a suit in tbe nature of proceedings in equity. Tbe eighth section of tbe thirtieth article of tbe Act of 1849 prescribed tbe mode by which a party against whom a judgment by publication was obtained might be relieved. Dickerson has no right to appear in this court and seek a reversal of a judgment against Browning when be is not affected by it.”
In State ex rel. v. Tate, 109 Mo. l. c. 268, it was said: “Tbe judgment was irregular, to say tbe least, as against J. J. Piland, tbe deceased. He was not served with process, and was reported ‘not living’ by tbe sheriff (though tbe effect of that part of tbe return we do not now discuss). But was tbe "judgment on this account irregular as against tbe other defend
In Christopher v. Kelly, 91 Mo. App. l. c. 100, the court said: “Neither is the rule founded on the entirety of judgments, whatever that doctrine may be worth; and it is worth much less than it once was. The original effect of it was, that if a judgment was void as to one of the parties thereto, it was void as to all. It was founded on a dictum and has been much discredited and weakened. [1 Freeman on Judgments (4 Ed.), sec. 136.] A study of the later cases of our Supreme Court on the subject will show, in harmony with what has been said above, that it is never applied except under compulsion from the nature of the case. It is common for judgments to be reversed as to one of the parties, or set aside for irregularities or want of jurisdiction, while it is upheld as to others. The rule now established is, that a judgment against several defendants, invalid as to one or more, may be reversed as to them and affirmed as to the others. This rule has been established in deference to the principles of the code, which has adopted the procedure in equity in this respect, and positively forbids the reversal of a judgment unless error was committed against the appellant or plaintiff in error and materially affecting the merits of the action. [Sec. 865, R. S. 1899.] ”
In the very late case of Stotler v. Railroad, 200 Mo. l. c. 149, this court said: “But, waiving the point, we consider it established on reason and author
In view- of these well-settled principles, it must be held that, as this is a suit in equity, the doctrine of the entirety of the judgment does not apply. And as was said by Judge Scott in Dickerson v. Chrisman, 28 Mo. l. c. 141, these three defendants have no right to appear in this court and seek a reversal of the judgment against the McMillens and William Van Dyke when they are not affected by it. And as said in State ex rel. v. Tate, supra, the irregularity as to the McMillens and Van Dyke cannot avail these defendants who were personally served and appeared and contested the case. And it is not at all necessary for us on this appeal to determine whether the service and process as to the McMillens and Van Dyke was valid or not.
II. It is insisted that the court erred in permitting the plaintiff, Mrs. Freeland, to testify in the cause, because her husband was dead. In Scrutchfield v. Sauter, 119 Mo. l. c. 624, it was said by this court: “It has long been the settled law in this State that the statute (sec. 89-22) defining the competency of the husband and wife to testify in their own behalf, and for each other, did not intend to exclude the wife from
Moreover she did not testify as to any contract with her husband. Her right to the land was not derived through any contract between her and her husband, but depended upon the payment of the money for the land in question by her father for her benefit, under an agreement between her father, Andrew Miller, and John Spencer, to which arrangement her husband was not a party. We think she was clearly a competent witness in her own behalf.
ni. It is also alleged that the court erred in receiving the testimony of John Spencer and the plaintiff as to the contents of letters written by Andrew Miller, plaintiff’s father, to them. An inspection of the record fails to disclose that any objection was made or exceptions saved to such evidence at the trial, and it» is too late to raise it now for the first time in this court.
IV. As to the proposition that plaintiff is es-topped to claim the land in suit by the understanding and agreement at the time of the acquiring of the Maitland property, we think there is no merit in the contention. This is not a question between the creditors of John Freeland and his heirs, but is a claim between Mrs. Freeland and the heirs of John Free-land. In order to constitute an equitable estoppel there must have been, not only a false representation or concealment of the facts, but they must have been made knowingly by the one to be estopped and believed and acted upon by the one claiming ,the estoppel. [Blodgett v. Perry, 97 Mo. l. c. 272; Scrutchfield v. Sauter, 119 Mo. l. c. 623.] We think the court was fully justified in finding that there was no such agreement as asserted by the defendants and that the property in Maitland was conveyed to plaintiff because she furnished the purchase money therefor.
The evidence not only shows that her father furnished the money to purchase this land for the plaintiff, but it shows that her husband and the children all knew this fact and the evidence shows that the title to the land Was taken in the name of the husband without the knowledge or consent of the plaintiff and that she never discovered the mistake until just prior to the bringing of this suit It is useless to cite authorities on a proposition so well settled as this. [Hudson v. Wright, 204 Mo. 412.]
"VI. As to the defenses of the Statute of Limitations, the facts are that the plaintiff was under the disability of coverture at the time of the conveyance under which a resulting trust arose in her favor. She continued under this disability until the 20th day of January, 1903. This suit was instituted in August, 1905, within three years after the removal of said disability, and the evidence convinced the trial court that plaintiff had no knowledge of the fact that the legal title to the land in controversy was in the name of her husband until after his death. “In implied trusts the Statute of Limitations begins to run as soon as the facts are brought to- the knowledge of the cestui que trust, so that he can take steps to enforce the trust. . . . The defendants relied on the statute, and it was hence their duty to bring the case within it by evidence; and having failed to do so, the presumption must be against them.” [Sutton v. Casseleggi, 77 Mo. 397; Buren v. Buren, 79 Mo. l. c. 542; Mann v. Balfour, 187 Mo. l. c. 309.]
It only remains to say that in our opinion the fact that the plaintiff listed this land in the inventory of her husband’s estate and took the credits for the taxes in view of all the testimony in the case, and
In our opinion the decree of the circuit court rests upon a solid foundation and it is therefore affirmed.