188 Mo. 18 | Mo. | 1905
This is an action of ejectment brought by Joseph R. Hubbard and Ellen L. Jeffries, formerly Ellen L. Hubbard, and her husband, H. B. Jeffries, against Kansas City Stained Glass Works & Sign Company, tenant, and Ira F. Brainard, owner and landlord, defendants.
Joseph R Hubbard and Ellen L. Jeffries are sole children of Chester Hubbard and wife, Mary R. Hubbard. Chester Hubbard died July 3,1861, in Lee county, Iowa, plaintiff claims, leaving a will by which he left all of his property to his widow, Mary R, during her lifetime, and after her death to his children. Mary R. Hubbard died February, 1900, and his children are now claiming this property in suit.
In the year 1855 Chester Hubbard owned a tract of land in Kansas City, Missouri, which he, on November 29, 1855, platted into an addition known as Hubbard’s Addition to Kansas City.
It can serve no useful purpose to burden this opinion with a reproduction of the pleadings upon which the
In June, 1856, Chester Hubbard, who is the conceded common source of title, sold the lots in controversy, part of lots 78 and 79, to Susan A. Toler — the testimony does not disclose that this contract of sale to Mrs. Toler in June, 1856, was evidenced by any writing; but the Tolers, under the contract, went into possession and began to make improvements — Hubbard residing near this property, and from all the cir■cúmstances in proof, it is a perfectly legitimate inference that he knew of such possession, consented to it, in fact authorized it. The testimony as to the transaction between .Hubbard and the Tolers, in June, 1856, does not disclose that anything was paid at that time.
On September 8, 1856, Hubbard and wife sold all of his remaining lots, then unsold, in Hubbard’s Addition, to H. PI. King — this deed omitted the lots sold to Mrs. Toler.
At the time Chester Hubbard made this sale to King, September 8,1856, Toler was at work excavating and building a house on the lot which Hubbard had sold to him.
Hubbard and wife, after they had sold the remaining unsold lots in Hubbard’s Addition to H. H. King, September 8, 1856, in preparing to leave Kansas City for Iowa, made a power of attorney, dated September 8, 1856, to John W. Summers, authorizing him to sell real estate and make deeds thereto and receive and collect all sums of money which shall become due and payable to said Hubbard by reason of such sale or sales, and to collect and receive all money and debts payable to said Hubbard and to perform such other
On November 27,1856, Chester Hubbard arid wife, by John W. Summers, made a title bond to Susan A. Toler to part of said lots seventy-eight and seventy-nine, the property in controversy, which was acknowledged and recorded in the office of the recorder of deeds of Jackson county, Missouri, on December 8, 1856. This title bond recites as follows, to-wit: “Know all men by these presents that I, Chester Hubbard, by John W. Summers, my attorney in fact, am held and bound to Susan A. Toler in the sum of eight hundred dollars,” . . . and further recites, “The condition of this bond is that whereas said Chester Hubbard has bargained and sold unto the said Susan A. Toler the following described real estate,” being the lots in controversy, ‘ ‘ and whereas said Toler has agreed to pay for said land four hundred dollars, within five years from the 27th day of June, 1856, together with ten per cent per annum, payable semiannually, ’ ’ then recites that if the money is paid a warranty deed shall be made to them” . . . then, “Signed and sealed the day and year above first written. John W. Summers (Seal), attorney in fact for Chester Hubbard.”
G. M. B. Maughs made a note for four hundred dollars, dated June 27, 1856, due five years after its date, bearing interest at ten per cent per annum, and this note was delivered to Chester Hubbard and was among the assets which.came into the possession of Mary R. Hubbard, as executrix of Chester Hubbard, upon his death, and she caused the same to be appraised as a part of the personal estate of Chester Hubbard, deceased.
Maughs, after his purchase above named, plastered the house and moved into it and lived in it until the spring or summer of 1861.
Maughs’s note to Chester Hubbard for four hundred dollars, dated June 27, 1856, due five years after date, became due June 27,1861. Chester Hubbard died in Iowa July 3, 1861, after the maturity of the note.
Chester Hubbard left a will naming his wife Mary R. Hubbard as executrix, and she was appointed executrix by the probate court of Lee county, Iowa, in September, 1861. . Other notes made by King and others for real estate sold to them by Hubbard in his lifetime, were also among the assets which came into her hands as executrix in Iowa. By reason of the un
G. M. B. Maughs purchased this house and lot from Toler and wife in 1857, and received from them the written assignment, dated May 19, 1857, of the title bond from Hubbard, by his attorney in fact, J. W. Summers, to Toler, and this note which he gave to Hubbard for four hundred dollars, dated June 27, 1856, due in five years, and bearing interest at the rate of ten per cent per annum, corresponded in every detail with the recitals in the title bond as to the amount which the Tolers had promised to pay to Hubbard for this land.
On December 10, 1860, a judgment was rendered by the circuit court of Howard county, Missouri, in favor of Nancy Cañóle and against Reed, Smith and G. M. B. Maughs, for $593.35,
On January 31, 1861, the clerk of the Howard County Circuit Court issued an execution on said judgment against Maughs et al., to the sheriff of Jackson county, Missouri, and on February 21, 1861, the sheriff levied on this property as the property of Maughs.
By reason of the unsettled, conditions in Jackson county, growing out of the war, no term or session of the circuit court of Jackson county was held at which the sheriff could make sale of this property from date
The regular March term, 1865, of the circuit court of Jackson county began March 14, 1865, and was in session March 15, 1865.
The sheriff’s deed to 'William. Miller, hereafter referred to, recites that this execution was returned to the clerk of the circuit court of Howard county, in the latter part of the year, 1862, reciting that no sale had been made because no term of court had been held in Jackson county, at-which it could be made.
On January 3, 1863, the circuit court of Howard county made an order directing the clerk of the said county to issue a writ of execution, or venditioni ex-ponas, as it is sometimes called in these proceedings. The clerk issued this writ January 9, 1863, but no sale of the property was had until March 15, 1865-, because no term of court was held at which a sale could be made. But this property was advertised and sold under the judgment, execution and levy made February 21, 1861, at the .first term at which a sale could be made under this, levy, viz., the March term, 1865, which began March 14, 1865-, and this property was sold by the sheriff on March 15, 1865, to William Miller, who paid his bid of $75 to the sheriff therefor.
On March 15, 1865, John Gr. Hayden, as such sheriff, made a sheriff’s deed to said William Miller to this property, which was duly recorded March 15, 1865, and William Miller, after receiving such deed, entered into possession and moved into the house.
William Miller, after the purchase at sheriff’s sale and the deed of March 15, 1865, on August 22, 1865, filed his petition in the probate and common pleas court of Jackson county, Missouri, setting up a sale by Hubbard to Toler, an assignment by Toler to Maughs of the Toler contract, the fact of the four hundred dollars of the purchase-money and interest thereon and the
.William Holmes, as administrator with the will annexed of the estate of Chester Hubbard, filed his first annual settlement May 1, 1866, in which he accounted for this money collected from the note made by Maughs to Hubbard for this land in the following language: “To cash received of William Miller in ease of said Miller v. Administrator in Probate Court, being full amount due on note of G. M. B. Maughs on inventory, $930.30.”
William Holmes, as such administrator, collected other sums from King and others on notes made to Chester Hubbard, and which came into possession of Mary R. Hubbard as executrix in Iowa; and which she turned over to William Holmes, upon his appointment as administrator here, for collection, amounting, as shown by this first settlement alone, to over eight thousand dollars. This first settlement'shows that he paid to her, as such foreign executrix, the money which he
Maughs left Kansas City in the Spring of 1861, and went into the Confederate Army, where he remained until the end of the war and did not return to Kansas City until about 1866'.
Toler began to erect a house on the lots at once after the purchase, and built the house in the summer and fall and lived in it until he sold it to Maughs in 1857. Maughs lived in it until the spring of 1861, and while he lived in it the entire lot was inclosed with a fence.
When Maughs left Kansas City to go into the Confederate Army, the Federal soldiers came and toolc possession, the officers moving into the house and the ¡^soldiers occupying the premises for a time.
Frank L. McHenry, in 1862, rented the premises and occupied them as Maughs’s tenant for from one and a half to two years, and when he moved into it the house was in good repair and the lot entirely fenced. He, McHenry, was notified by the United States provost marshal, to quit paying rent to Maughs, and he did so, and a few months afterwards vacated the premises. The Ünited States authorities assumed charge of all the property owned by the soldiers in the Confederate Army, and placed in this property Union refugees, after McHenry moved out of it.
William Miller, upon his purchase at sheriff’s sale, March 15,1865, moved into the premises.
The property was assessed by the city to Gr. M. B. Maughs, in 1858 and 1860, and the taxes are marked
Dr. G-. M. B. Maughs and his wife made a quitclaim deed to Russell Hicks, December 7,1868. Russell Hicks was adjudged a bankrupt in 1876, and the assignees in bankruptcy of Russell Hicks made a quitclaim deed to this same property, March 31, 1879, to William Miller.
In September, 1873, John G. Hayden, as late sheriff, made a second sheriff’s deed to William Miller, to the property, reciting all the steps from the date of the judgment against Maughs on December 10, 1861, down to the date of the sale to William Miller, under the judgment, on March 15,1865. Judge Francis M. Black drew this second deed and testifies that the facts recited in the deed were taken from the original papers and records which he then had before him.
The files and papers in the case of Cañóle v. Reed, Smith and Maughs in the circuit court of Howard county, Missouri, have been lost.
On April 20, 1869, Joseph R. Hubbard was then over the age of twenty-one years, he having arrived at the age of twenty-one years in October, 1868. Nellie Hubbard, now Mrs. Jeffries, did not arrive at the age of eighteen years until October 19, 1875, and she was married to Horace B. Jeffries, a year later, on October 23,1876.
William Miller conveyed this property to J. E. Gaylord, Turner A. Gill and Gardiner Lathrop, April 22, 1878, by a warranty deed which was duly recorded, and they, Gaylord, Gill and Lathrop and wives conveyed the same to J. R. Williamson January 21, 1879,
The house that Toler erected on the premises in 1856, which was plastered by Maughs after he moved into it in 1857, remained on the lot and in the actual possession of Maughs and his tenant, except during the period it.was occupied by the United States forces and in their possession, and of William Miller and his tenants and. grantees, Gaylord, Gill and Lathrop, and their tenants, down to 1881, in which year J. R. Williamson, the purchaser from Gaylord, Gill and Lathrop, tore down the building and erected a substantial brick building on the lot, at a cost of from seven to eight thousand dollars, and expended a total in improvements of about twelve thousand dollars, and Williamson and Brainard and their tenants have been in actual possession to this date.
Upon the submission of this cause to the court, it found the issues for the defendants, and entered its decree, quieting the title to the premises in dispute, in the defendants. Motions for new trial and in arrest of judgment were filed and by the court-overruled, and plaintiffs in due time and form prosecuted their appeal to this court and the cause is now before us for consideration.
OPINION.
It is apparent from the record in this cause that the trial court in the disposition of it necessarily had to deal with business transactions in respect to the property in dispute, which occurred nearly a half century ago.
The plaintiffs by this suit seek to recover property which was owned by their ancestor over forty years ago, the possession of which was surrendered by him in the year 1856, and neither the ancestor nor his heirs
In view of this disclosure by the record it is not out of place to remark, at the very inception of the discussion of the legal propositions presented for our consideration, that this court has given expression to its “disfavor of efforts seeking to overthrow business and judicial transactions, which have occurred at a remote period, and of the liberal presumptions that it would indulge in order to prevent irregularities or imperfections in such transactions from being held fatal.” [Williams v. Mitchell, 112 Mo. l. c. 313, and cases cited.]
Angew, J., in Richards v. Elwell, 12 Wright (48 Pa.) l. c. 364, 367, said: “If the rule which requires the proof to bring the parties face to face and to hear them make the bargain, or repeat it, and to state all its terms with precision and satisfaction, is not to be relaxed after the lapse of forty years, when shall it be? . . . There is a time when the rules of evidence must be relaxed. We cannot summon witnesses from the grave, rake memory from its ashes, or give freshness and vigor to the dull and torpid brain.” [See, also, 2 Wharton on Evidence, secs. 1338-1352.]
Numerous errors are assigned by learned counsel for appellant in the disposition of this case by the trial court, and we will give the errors complained of such attention as their importance demands.
First, it is contended by appellant that John W. Summers had no power to execute the title bond introduced in evidence. A careful consideration of the testimony as developed at the trial of this cause plainly shows that the appellant is in no position to urge this contention. When all the evidence as to the sale made
The title bond executed by John W. Summers was dated on November 27, 1856, and it is apparent, when all the facts and circumstances are considered surrounding this transaction, that this bond was simply executed as additional evidence of the contract of sale, which was made in the first place in June, 1856, by Hubbard himself. This is made manifest by the conditions recited in the bond as follows: The condition
Upon this disclosure by the record of the facts in this case we see no necessity for even discussing the proposition as to whether or not Mr. Summers had the power to execute this bond. It may be conceded that he had no such power, still we are confronted with the facts in this .case, which show that Chester Hubbard
It is next contended by appellants that tbe contract of sale as made to Mrs. Toler, in which she' agreed to pay $400, five years after tbe date of such contract of sale, was a contract falling within tbe Statute of Frauds and void for tbe reason that it was not to be performed within a year. Upon tbis proposition it is only necessary to say that tbe testimony in tbis case shows such performance of tbe contract at tbe time that it was made as to clearly place it outside of tbe Statute of Frauds. It was shown that upon tbis contract being made, tbe Tolers took possession of tbe premises with tbe full knowledge and consent of Chester Hubbard and made substantial improvements, and that Chester Hubbard, after tbe assignment of tbe title bond as executed by Summers to tbe Tolers, to Dr. Maugbs, accepted a promissory note in writing executed by Dr. Maugbs to him for tbe sum of $400', dated back to tbe time of tbe making of tbe contract with Mrs. Toler, on June 27, 1856.
It is also urged by appellants that tbe title bond did not provide for tbe possession of Mrs. Toler and cites Tyler on Ejectment, 554, to tbe effect that “a party entering under a contract which does not give possession is subject to ejectment at any time without notice.” It is clear that tbe rule announced by tbe learned author is not applicable to tbis case, by reason of tbe facts shown by tbe evidence. Tbe possession of tbe premises in dispute was given under tbe contract of sale made with Mrs. Toler in June, 1856, some
Appellants insist that Dr. Maughs had no vendible interest in the land sought to be recovered by plaintiffs in this cause, therefore that no title or interest could pass from Maughs to the defendants or their grantors. Under the testimony in this case we are unable to give our assent to that contention. Mrs. Toler, by her contract of purchase and entering into the possession, acquired the equitable title to the land in dispute; her interest in this land was assigned for a valuable consideration to Dr. Maughs and he went into the possession of the premises and retained possession until 1860 or 1861, when the Civil "War began. .His interest by virtue of the assignment from Mrs. Toler was fully recognized by the ancestor of the plaintiffs to this action, by the acceptance of the note of $400 for the purchase-money; hence, we hold that Maughs had the equitable title to the premises in dispute, and upon the payment of the purchase-money was entitled to have decreed to him the legal title. This, under the laws of this State, was an interest in land susceptible of being conveyed. In Brant v. Robertson, 16 Mo. 129, it was ruled that “where parties bind themselves by agreement to convey land and to pay for it, equity recognizes an interest in the land as already in the purchaser, and the case is stronger when the purchaser has actually paid in whole or in part, and in either case
Again, it is insisted by appellants that Dr. Maughs abandoned his possession of the premises, hence he could not maintain an action for specific performance, and not being able to maintain that action, he had no equitable title to the premises. The testimony applicable to this particular contention shows that Dr. Maughs took possession of this property after purchasing the interest of Mrs. Toler and continued in possession until the spring or summer of 1861, when he went into the Confederate Army. According to the testimony of one of the witnesses Dr. Maughs left when the United States soldiers came. P. L. McHenry, in 1862, occupied the premises as Maughs’s tenant, and paid the rent to Maughs’s agent. McHenry continued to pay rent until the United States provost marshal notified him to pay no more rent because he (Maughs) was in the Confederate Army. The property was inclosed by a fence at the time Maughs left for the army. In our opinion this, when considered in connection with the conditions of the country at the time Dr. Maughs left for the army, did not constitute that voluntary abandonment of possession of the property as to be of any avail to the plaintiff in this case. [Hamilton v. Boggess, 63 Mo. 233.]
Appellants next insist that even though Dr. Maughs had a vendible interest in these premises, the sale by the sheriff in pursuance of the execution issued from
It may be added that the conclusions reached as to the sufficiency of this deed finds support in the case of Houck v. Cross, 67 Mo. 151. It was said by the
If we are to any longer regard equitable principles, the facts, as disclosed by the record in this cause, clearly entitled Dr. Maughs, upon the payment of the purchase-money to Chester Hubbard, to have the contract of sale as between Hubbard and Mrs. Toler specifically performed.
The defendants in this case having acquired all the rights possessed by Maughs and having fully paid the balance of the purchase-money, together with all interest, were entitled to the same equitable relief. '
This case, briefly summed up, is an effort upon the part of the heirs of Chester Hubbard to recover real estate sold by him in his lifetime, the contract fully performed, and the purchase-money fully paid to the executrix of his estate to be distributed according to his wishes as expressed in his last will. The sale of this property to Mrs. Toler, the assignment of her interest to Dr. Maughs and the acquiring of his interest, through conveyances, by the present defendants, was fully recognized by the plaintiffs themselves. Evidence of this recognition is furnished by the answer of Mary R. Hubbard and J. R. • Hubbard in case of Hicks v. the Hubbard Heirs in the Jackson Circuit
The further recognition by the Hubbard heirs, that Miller upon plain, equitable principles was the owner of this property, is evidenced by the execution of the deeds by these heirs to him without a consideration, of date April 20, 1869.
Upon the facts as developed in the trial of this cause, regardless of the action of the probate court in undertaking to specifically perform this contract, the decree of the circuit court in holding these plaintiffs were estopped from claiming any interest in this land and quieting the title in the defendants, was clearly right, and in accord with good conscience and the administration of justice, as well as the well-settled principles of equitable jurisprudence.
While the transactions between the parties in respect to this land, by reason of the remote period at which they occurred, are not susceptible of that clear and satisfactory proof ordinarily required in actions of this character, still, when all of the facts and circumstánces introduced in evidence are fully considered, it sufficiently indicates that Chester Hubbard in his lifetime sold this property to Mrs. Toler; that she went into possession; made valuable improvements; that she assigned her equitable title in the premises to Dr. Maughs, who after such assignment, went into possession and made additional improvements, and that defendants acquired the title of Dr. Maughs, and went into possession and still made further valuable and substantial improvements; that Chester Hubbard, during his lifetime, recognized this sale, accepted Dr. Maughs’s note for $400 as part of the purchase-money for the premises; that his widow, after the death of Chester Hubbard, as executrix, recognized the sale of this property, proceeded to enforce the collection of the
In view of this state of facts, it would be grossly inequitable to permit a recovery of this property, and the decree of the circuit court was proper; and having reached this conclusion, it is unnecessary to express an opinion as to the action of the probate court in undertaking to specifically perform the contract. The decree of the circuit court will be treated as a specific performance of the contract of sale as made by Chester Hubbard in his lifetime. Entertaining the views as herein expressed, the judgment and decree of the trial court should be affirmed, and it is so ordered.
