183 Mo. 533 | Mo. | 1904
This is an action of ejectment for the south half of the northwest quarter' of the southeast quarter of section 17, township 28, range 31, in Jasper county, Missouri.
The common source of title was admitted to be in Joel Grubb and Mrs. Rhoda O. Grubb, who were, in their lifetime, husband and wife. Mathew Payne, the father of Mrs. Rhoda O. Grubb, died seized of this and other lands, and after his death a partition was had. It was alleged in the petition for partition that Joel Grubb had by purchase acquired the interest of certain heirs in his own right, and that Mrs. Grubb had inherited a part of said land as a daughter and heir at law of Mathew Payne, deceased. The partition was in kind and the share of Joel Grubb and Mrs. Rhoda Grubb, his wife, was found by the court to be “three and thirteen-fifteenths of seven and three-fifths of said land,” quantity and quality‘considered, and their said shares were ordered to be set off to them by metes and bounds.
The commissioners set off to Joel Grubb and Rhoda C. Grubb the west half of the southeast quarter of section 17, in township 27, range 31, in Jasper county, Missouri. Joel Grubb died in October, 1889. Mrs. McReynolds is one of the children and heirs at law of Joel Grubb. Joel Grubb was married twice, if not three times. His first wife was Cyrena Payne, the mother of five of his children, to-wit, America McRey-nolds, Sarah A. Montague, John Grubb, Jacob Grubb and Virgil Houston Grubb. Rhoda C. Grubb bore him one child, Victoria Grubb, who also survived him and afterwards intermarried with Mr. Ooulter.
In 1877 Joel Grubb was the owner in fee of the northwest quarter of the southwest quarter of section 10, township 27, range 31, except two and one-half acres thereof. It seems this was his homestead. He also owned twenty-six and one-half acres, a part of the northwest quarter of the southeast quarter of section 9, township 27, range 31. The plaintiff in this suit bases his right to recover on purchases and deeds from Mrs. Rhoda C. Grubb and her daughter, Mrs. Victoria Coulter, to the northwest quarter of the southeast quarter of section 17, township 27, range 31.
The deed from Rhoda C. Grubb was a quitclaim deed and dated May 28, 1896, consideration $500, and recorded in hook 145, p: 246. Mrs. Coulter’s deed was executed by her and her husband to plaintiff August 16, 1899, for the consideration of $80, and is recorded in hook 145, p. 377. It was admitted that defendants McReynolds were in the possession of the south half of the northwest quarter of the southeast quarter of section 17, township 28, range 31, the land described in the petition.
The answer is a general denial, but admits defendants have been in possession of the land since the twenty-first day of October, 1899. ' The answer then at length and in detail proceeds to state all the real estate owned by Joel Grubb in 1877 in his own right, and his ownership with his wife of .the northwest quarter of the southeast quarter of section 17, township 27, range 31, except three-fourths of an acre in the southwest corner; said Joel owning an undivided three-fourths thereof and his wife Rhoda owning one undivided one-fourth. The previous marriage of Joel Grubb and the fact that in 1877 there were living five children by his first wife as already stated. The substance of the re
To this answer plaintiff filed a reply denying all the new matter alleged therein.
This controversy has been in this court on a former occasion in the cause of McReynolds v. Grubb, 150 Mo. 352. That was a suit- in equity to correct_the mistake made in the description of the land in suit in the deed from Joel Grubb and Rhoda C. Grubb to Jacob Grubb of date of March 9, 1877, whereby the northwest quarter of the- southeast quarter of section 17 was described as the northeast quarter of the southeast quarter of said section 17, and it was then held that as the interest of the said Rhoda C. Grubb in said northwest quarter of the southeast quarter was inherited by her from her father, Mathew Payne, after her marriage to Joel C. Grubb and prior to the adoption of section 6864, Revised Statutes 1889, it was not her separate estate, and could only have been conveyed by her and , her husband jointly, and then only by deed signed and acknowledged by them as provided by section 14, p. 935, Wagner’s Statutes 1872, and as said deed did not describe the land intended to be conveyed as to Mrs. Grubb it conveyed neither the legal nor the equitable title, and a court of equity could not correct said deed. Thereupon the plaintiff who had acquired the interest of Mrs. Grubb and her daughter, Victoria Coulter, brought this action in ejectment.
I. The first proposition advanced by plaintiff on this appeal is that the decree in partition of the estate in this land of Mathew Payne, deceased, Joel Grubb and Rhoda C. Grubb became tenants by the entireties of the northwest quarter of the southeast quarter of section 17, township 27, range 31, except three-fourths of an acre in the southwest corner thereof. This is a misapprehension of the law and a misapplication of the doctrine of tenancy by the entireties.
Unquestionably at common law a conveyance to
In all such cases the deed or will creates the title in the husband and wife, but in partition even if made by deeds inter partes no additional estate is conveyed to the partitioners. The decree of partition in the one case, or the voluntary deeds in partition in the other, only have the effect of assigning to each coparcener in severalty and by metes and. bounds that which was already his or hers. Our statute expressly permits any number of shares to be set off together in one parcel. [Sec. 4387, R. S. 1899.] This is. settled law in this State. It follows that Joel Grubb and his wife Rhoda were tenants in common and not by the entirety in said forty acres. [Whitsett v. Wamack, 159 Mo. 14; Palmer v. Alexander, 162 Mo. 127; Snyder v. Elliott, 171 Mo. 362; Propes v. Propes, 171 Mo. 407.]
It is 'then obvious that in no event could plaintiff recover more than the three-elevenths which Mrs. Rhoda C. Grubb inherited from her father, Mathew Payne, by virtue of his deed from her. Her dower rights in the eight-elevenths (or three-fourths as defendants say) of which her husband was seized, not having been asserted during the ten years after her husband’s death, is barred by the statute of limitations.
II. Was Mrs. - Grubb estopped to claim her three-elevenths or one-fourth of said forty acres? If she was, it is clear that plaintiff took with notice of the facts which are alleged to estop her, and he stands in the same relation to defendants as to her said interest in said land that Mrs. Grubb bore to them.
The answer pleads an estoppel in pais, and the evidence discloses that Joel Grubb and his wife Rhoda C. Grubb owned the forty acres of land in section 17, in 1877, as tenants in common, Joel being entitled to three-fourths or eight-elevenths and his wife three-elevenths or óne-fourth, as the case may be; that Joel owned a homestead in the northwest quarter of the southwest quarter of section 10, township 27, range 31 in his own right, and 26 acres in section 9; that in March, 1877, Joel Grubb, being desirous of settling his affairs and providing for his family without the cost of administration or partition, proposed to his wife that they would convey all the land he owned and all the land that he and she jointly owned to his son, Jacob Grubb, and that Jacob should then convey to Joel’s wife and child, Victoria, the homestead or northwest quarter of the southwest quarter of said section 10, and that Jacob should then hold the lands in sections 17 and 9 until the death of Joel, his father, when the said sixty-six
Each child took possession of his own and matters so continued until 1895 when Mrs. Grubb commenced to make claims to the forty acres in suit, wherepuon Mrs. McReynolds and her husband and sister brought their suit in equity to correct the mistake in the deed, which was determined against them in McReynolds v. Grubb, 150 Mo. 352, in June, 1899.
Upon the foregoing facts the circuit court found for defendants, and plaintiff appeals.
The elements necessary to constitute an estoppel in pais were stated in Taylor v. Zepp, 14 Mo. 482, to be, “first, an admission inconsistent with the evidence proposed to be given, or the claim offered to be set up; second, action by the other party upon such admission; third, an injury to him by allowing the admission to be disproved. ’’
But there are also other grounds of estoppel recognized by the courts. Thus, in Collins v. Rogers, 63 Mo. 515, and Evans v. Snyder, 64 Mo. 516, it was held that where the owner of land, knowing it to be his, stands by silently and sees the occupant making lasting improvements upon the property he will be es-topped from claiming it. “Silence in some cases will estop a party, ‘but silence without knowledge works no estoppel.’ ” [Acton v. Dooley, 74 Mo. l. c. 69.]
Applying these familiar principles to the facts pleaded and in evidence was Mrs. Grubb estopped from this land? In the former suit we held that a court of equity could not correct the mistake in the deed in which she joined her husband; that she was incompetent at the date of its execution by reason of her cover-ture' to make a deed. But while thi& is true, defendants insist that after Joel Grubb’s death Mrs. Grubb was a femme sole and joined in and assented to the division of the lands of their father and saw these defendants enter upon and take possession of this land in good
Did she do anything which misled the defendants to their hurt? John Grubb, one of the five children, over the objection of plaintiff was permitted to testify as to what his father told him as to the reasons for making the deed to.Jacob in 1877, and .that the first conversation he had with Mrs. Rhoda Grubb concerning this property was some two weeks after his father’s death in October, 1889. He says:
“We didn’t go there (to Mrs. Grubb’s house) to make any division whatever. We had made the division of what we considered our own property before that time; on that same day, however, we had divided it mutually among ourselves. We went to turn over the personal property to her (Mrs. Grubb): make her a gift of it. We went over there to tell her and to have
On cross-examination he stated there was nothing said abont deeds at the time they were at Mrs. Grubb’s honse, not a word, or making deeds. We met at Jake’s honse and divided np the lands withont consulting the widow abont it. She had nothing to say abont that. Asked if on the other trial he had not testified, “She made more threats afterwards, two or three months, or three or fonr months afterwards; she told me we have just robbed her,” he answered he did; “that was the time she entered complaint abont Vic.”
Mr. McEeynolds testified substantially as John Grnbb did as to the occurrence at Mrs. Grubb’s house. He said no deeds were made there. It was Sunday. The deeds were made in Carthage next day. The trade between Virgil and his sisters was not talked of in the presence of Mrs. Bhoda- Grubb. This agreement to divide the land was made before they went to her honse. They went over and told her she could keep the personal property; there would be no need of an administration. He testified to some two hundred dollars worth of improvements he had placed on his wife’s twenty acres and that Mrs. Grnbb had talked with him abont his improvements and had passed the place after he went there to live and saw his family there in 1891 and 1892.
H. Montague, the husband of Sarah A. Montague, one of the defendants, testified over the objection and
Jake said there was a $100 note of his that had some credits on it. She said she was satisfied as to the personal property. He knew she was claiming the forty acres in 1896 before he brought the other suit against her.
Mrs. McReynolds testified they met at Jake’s house and agreed upon a division of the land before they' went to Mrs. Grubb’s home, and corroborated John’s statement as to what occurred there that Sunday. They gave Mrs. Grubb all the personal property, some $200 or $300 worth. She asked what part we girls had taken and we told her that sister and I and Virgil took the spring forty and John and Jake the twenty-six acres. She said she wished we girls had taken the twenty-six acres as she and Jake were not on very good terms. She said she was glad we settled without any trouble.
Mrs. Montague and Jacob Grubb testified substantially as their sister did.
On the part of plaintiff there was the evidence of* Mrs. Grubb taken in the former trial (she having died before this cause was tried) to the effect that she purchased the homestead forty acres in section 10 from
,Abe Crow testified that he paid $25 on the said note and that it was paid.
From the foregoing summary of the evidence it seems clear that defendants were not induced to make the division of the lands in suit by anything said or done by Mrs. Grubb. All of the children except Virgil Grubb testified and they all concur in saying that they met at Jacob’s house, and agreed among themselves as to the division, in the absence of Mrs. Grubb; they then went to her house, notified her that they had made the division and had come to tell her she could keep the personal property, amounting to some $200 or $300, the weight of the evidence being that it did not amount to over $250; that they demanded Jacob’s $500 note and she gave it up to them. They all say she was in no way consulted as to the division of the land nor did she make any statement whatever as to the title. It seems too clear for discussion that they did not rely upon anything she said in making their division, and Victoria Grubb at that time was. a child and ignorant of what was going on and incapable by her infancy of estopping herself any way.
The permission given her to keep the personal. property has’none of the elements of an estoppel. It is not pretended that it was the result of a contract. They testify they intended it as a gift, assuming that they could claim it by virtue of the bill of sale which
No one can read this evidence without being impressed with the fact that the children of Joel Grubb were taking matters in their own hands and administering his estate without consulting his widow, and her acquiescence under the circumstances in their very generous offer to permit her to keep that which was her own, can npt be construed into an estoppel of any rights she had in the land of her deceased husband. It is lacking in the elements which this court required to exist in estoppels in Blodgett v. Perry, 97 Mo. l. c. 273, wherein it approved Bigelow’s statement of equitable estoppel; viz., that, ‘‘ The cases when carefully analyzed show that all of the following elements must actually or presumably be present in order to an estoppel by conduct: 1. There must have been a false representation or a concealment of material facts; 2. the representation must have been made with a knoioledge of the facts; 3. the party to whom it was made must have been ignorant of the truth of the matter; 4. it must have been made with the intention that the other party should act upon it; 5. the other party must have been induced to act upon it.” [Bigelow on Estoppel (3 Ed.), 484.] So that the case upon the facts is reduced to the one consideration, Is she estopped by her silence and laches ?
As said by this court in Acton v. Dooley, 74 Mo. 69, “Silence in some cases will estop a party, ‘but silence without knowledge works no estoppel’ [31 Pa. St. 334.] ‘If no one has been misled to his hurt, if no injury has arisen from the conduct, declarations or silence of a party, he will not be estopped from contra-
In Monks v. Belden, 80 Mo. 642, this court in quoting Taylor v. Zepp, 14 Mo. 482 and Acton v. Dooley, 74 Mo. 63, said: “An admission or assertion made by one party to another is not sufficient to create an estop-pel in pais, unless the party to whom it was made acted upon it.”
In Blodgett v. Perry, 97 Mo. 273, this court, approving Acton v. Dooley, 74 Mo. 63, said: ‘' Furthermore, there must be a certainty about the alleged estop-pel; the misrepresentation must be plain, not doubtful or matter of mere inference or opinion; for the courts will not suffer a man to be deprived of his property or security where he has no intention to part with it. It is much the same thing to say that the representation or conduct is such as would naturally lead to the action taken; that is, it should be such as to justify a prudent man to act upon it.”
Mrs. Grubb’s title to the undivided one-fourth in the northwest of the southeast quarter was of record and directly in the chain of title of defendants from their father. By the slightest diligence they could have ascertained if Mrs. Grubb had conveyed her interest. The search to that extent would have disclosed the mistake which they claim was made and before dividing the land they could have ascertained her rights. We have already ruled that neither a court of law nor equity could correct such alleged mistakes because Mrs. Grubb was at that time a married woman and her estate a legal one and not her separate estate.
In view of these established principles it is obvious that when the five children and the two sons-in-law of
As to the question of laches. As already said, she was a woman of little or no education. This division
Our conclusion is that plaintiff is entitled to recover, on the facts shown, one-fourth of the twenty acres in suit, subject to the right of defendants to have the value of any permanent improvements they have put on said land first ascertained and one-fourth thereof paid by plaintiff before he is entitled to possession and that the court erred in not so holding.
The judgment is reversed and the cause remanded.