88 Mo. 60 | Mo. | 1885
This is an action of ejectment commenced in 1881. On the trial before the court without a jury, it was admitted that J. C. Ledbetter was the common source of title, and that defendant was then, and had been, since April, 1878, in possession of the land in dispute. The plaintiff offered no evidence. The court ruled that plaintiff was not entitled to recover, and accordingly gave judgment for the defendant, from which plaintiff appealed.
The answer contains two defences: 1st, a general denial; 2d, an equitable defence. The plaintiff’s theory is that the admission taken in connection with the pleadings as a whole, made out his case. The defendant, even in an action of ejectment, may plead as many defences as he may have, legal or equitable, or both. The only linait is that by the practice act they must be consistent. Ordinarily, a statement of new facts showing a non-liability, impliedly at least admits a liability, but for
Now the second defence in substance states that J. C. Ledbetter, the husband of the defendant, owned the land, and in 1874 conveyed the same to C. H. Brown in trust “for the sole, separate, and only benefit of the defendant.” It further states- that to reconcile some family difficulties, and for a valuable consideration, the husband and wife undertook to make a conveyance of the property to Hay, and Hay to the defendant, but by mistake the parties failed to affix to the deeds their seals ; that thereafter, to defraud defendant, J. C. Ledbetter made a deed to Brown, intending to convey the land to him, and that Brown attempted to convey this pretended title to plaintiff, who had full notice, etc. Now, laying out of view the deed of trust, the answer shows that the husband owned the property, and this was also admitted on trial, and it shows that the plaintiff holds that title subject to defendant’s equities, which, if truly stated, would constitute a complete defence. If nothing more had been stated we see no reason why the plaintiff should in the first instance be put to further proof. But the answer also shows that J. C. Ledbetter had previously conveyed the land to Brown in trust for defendant’s sole use. That was the prior and paramount title and conveyed the fee according to the answer, and the answer does not appear to assert that Brown attempted to convey this title which he held as trustee, if indeed he could without defendant’s consent, but rather asserts that he conveyed to the plaintiff the pretended title subsequently acquired from the husband. Taking the second defence as a whole, we do not see that plaintiff got any title at all, and the ruling was, therefore, correct.
The judgment is affirmed.