69 Mo. 442 | Mo. | 1879
This is a proceeding in equity to establish the title of plaintiffs to eight or nine hundred acres of land in Pemiscot county, alleged to have been divested from plaintiffs’ ancestor by fraud and breach of trust. The suit was instituted on the 10th day of August, 1869, the pleadings and testimony are voluminous, most of the transactions upon which the finding and decree of the court are based, occurred years ago, extending from 1837 down to within a year or two before the institution of the suit, and it is, therefore, necessary to determine whether the finding of the court upon which the bill was dismissed, and upon which, what is here called the cross-bill was sustained, was justified by the testimony, and wRether the decree was authorized by the finding. It would not sub-serve any useful purpose, however, to give a detailed statement of the evidence in the 'case. There are some facts undisputed, and these need only to be rehearsed; there are others about which the evidence is contradictory, and concerning them we will merely state the character of the evidence adduced on either side, and,the inferences to be drawn from such testimony, taken in connection with undisputed facts.
It appears from the record that Arthur E. Eastwood, one of the sons of James Eastwood, entered part of the land in controversy at the Jackson land office, in 1837, in his own name, and secured the patent from the Government in due time. He was then a minor about eighteen years old. He was a brother of William J. Eastwood, who was younger than Re, in whose name the remaining forty acres of the land was entered. The plaintiffs were the three children.of Arthur
There is considerable diversity of opinion in the statements of witnesses as to what occurred at the sale, which-took place in 1852, and after the death of Arthur E., one of the grantors. The trustee, Hunter, was dead before the-' trial, and so was the father, James Eastwood, and both the sons. His two sons-in-law, Nall and Tinsley, were,, however, examined, and they were obviously the most reliable witnesses, as they had every opportunity of knowing
Among the points made in this court for reversal, the decree for the correction of the deed from Hunter to Tins-ÍS mUc]l ^lied 011 aS a fatal el’r01’The objections are that there was no evidence to show that it was a mistake, and none to show in what the mistake consisted, and that all relief of that kind was barred by the statute of limitations, the deed having been made in 1852, seventeen years before the institution of this action. The mistakes in this deed were
It is not easy to see upon what principle it is that the plaintiffs invoke the statute of limitations to bar the cor-rectio11 of these mistakes in the deed. The defendants, who are purchasers for value, directly or indirectly, from Tinsley, have never been disturbed in their possession. No eviction has occurred— nothing, in short, requiring any affirmative action on their part, till the institution of this suit, against those who then, for the first time, discover the defects or omissions in the trustee’s deed. They are, in our opinion, clearly entitled to have the deed corrected, unless, as is assumed as the basis of all argument to the contrary, it was concluded, by the court, that the sale from Hunter to Tinsley was the result of a fraudulent conspiracy. But the circuit court found that there was no such conspiracy or fraud, and we concur in this finding. The defendants were then entitled to have the deed corrected. Bartlett v. Judd, 23 Barb. 270; Mastin v. Halley, 61 Mo. 198.
As to the plea of the statute of limitations on behalf of defeudants, we deem it unnecessary, although the court also found for defendants on that plea. The plaintiffs are the party who come into court and ask affirmative relief, and their case wholly depends on the establishment of two assertions; one, that their ancestor was the owner, legal and equitable, of the land in question, and the other, that the sale by the trustee in 1852 was a fraudulent one. They failed to prove either. The plaintiff's must first make out a case. The defendants have been in possession, paid high
Affirmed.