71 Mo. 358 | Mo. | 1879
This is a proceeding in-ejectment to recover the possession of the following lands in Saline county, to-wit: The northwest quarter of the southeast quarter of section 17, township 49, range 20, and the southwest quarter of the southeast quarter of section 17, township 49, range 20. The suit was instituted against defendant, Lea-ton, and Eva W. Miller, being the landlord of said Leaton, and the real party in interest, was subsequently, on her motion, made a party defendant. .The petition is in the usual form, and the answer of defendant Leaton is a specific denial of the allegations therein.
The separate answer of defendant Eva W. Miller, after denying specifically the allegations of the petition, avers that the tract of land in controversy was formerly owned by Thomas L. Williams, late of Knox county, Tennessee ; that said Williams died in 1856, having previously made a will, dated November 20th, 1854, which was admitted to probate in Knox county, Tennessee, January, 1857; that the thirteenth clause thereof contains this devise : “ The land I own in the State of Missouri, which adjoins
The reply to this answer admits that the land belonged to Thomas L. "Williams, who died in 1856, leaving a will, which was probated, the 13th clause being as copied, as alleged in the answer. It is alleged that the land in suit is part of the land described in the bequest aforesaid, and that plaintiff Mary P. Napton, then Shelby, is the granddaughter referred to. It is denied that testator conveyed this land to Margaret M. Miller at any time, or made any deed therefor. It is alleged that Margaret M. Miller falsely represented to the devisees, and to the administrator de bonis non, (whether by mistake or not they do not know,) that a deed had been made and delivered to her for said land ; that plaintiffs have since been informed that the said administrator, acting upon the supposition that said representation was true, filed the bill in chancery as stated, and alleged therein that said land had been so conveyed, and asked that Margaret M. Miller be charged with the value thereof; that plaintiffs do not know whether she was so charged, but say that no evidence was produced in said
Plaintiffs obtained judgment in the circuit court, from which defendants prosecute an appeal to this court.
Both plaintiffs and defendant Eva W. Miller claim the land in controversy, through Thomas L. Williams as the common source of title. Plaintiffs derive their title by virtue of a will executed by said Williams on the 20th day of November, 1854, and admitted to probate in Knox county, Tennessee, in January, 1857, which contains the following clause, viz.: “ The land I own in the State of Missouri, which adjoins the land conveyed to my daughter, R. S. Shelby, I give and devise to Mary P. Shelby, my grand
The questions, therefore, presented for our consideration are two : Eirst, Bid Thomas L. Williams, after the date of his will and before his death, execute and deliver to Mrs. Margaret M. Miller a deed conveying the land in dispute ? Second, If he did not, are plaintiffs estopped by the said chancery proceeding from asserting title under the will? The trial court determined both these questions in the negative, and we are asked to review its finding in these particulars. This being an action of ejectment, we might dispose of the questions presented by saying that as there was evidence on the trial tending to establish the respective theories of plaintiffs and defendant, we would not consider it for the purpose of determining whether it preponderated in favor of or against either plaintiffs or defendant, that being properly the province of the jury, or the court sitting as a jury, and which we have repeatedly held this court would not invade. But as the parties by stipulation have agreed that a suit in chaucery, instituted in the Saline county circuit court by defendant Eva W. Miller
It may be observed that to deprive a devisee of land under a will on the ground that the testator had subsequently to the date of his will conveyed the same land to another person by deed which is alleged to be lost, the evidence adduced in support of such deed should clearly and certainly establish the fact that it was executed and delivered and conveyed the land devised. In all such cases it would seem to require more evidence than the sworn statement of the-grantee claiming under such deed,-that it was executed, delivered and conveyed the land. If the evidence of the grantee unsupported by other evidence should be esteemed sufficient to establish such fact, the title to land vested by virtue of a devise in a will would be held by a most uncertain tenure. It is, we think, clear that the evidence offered by defendant to establish the fact of the execution and delivery of the deed does not meet the requirement of the rule above indicated.
Mi's. Miller, the grantee, swears that Thomas L. Williams, her father, who resided in the state of Tennessee, during his visit to Missouri in 1856, made the deed in question at her home in .Boonville, Cooper county, Missouri, after the death of her husband, and delivered it to her with at least one other deed and perhaps others, urging and requiring her to place the same on record;, that at the time of making the deed Mary P. Napton, then Shelby, a child twelve years of age, being at her house, was called upon by Mr. Williams, her gránd-father, to sign the deed or something pertaining thereto ; that she never read them, did not know their contents — supposed her father read them to her or told her of their contents — knew he told her that they were for the lands in controversy; that soon after the
The only other evidence bearing upon the question of the execution of a deed to Mrs. Miller, by her father, is to be found in the evidence of McCallister, and which is claimed to corroborate that of the Mrs. Miller. McCallister testifies that he took Williams’ acknowledgment to a deed made in May, 1856, at Judge Napton’s house in Saline county ; that this occurred before the death of Mrs. Miller’s husband, that he did not recollect of taking but one acknowledgment of Williams; that Williams told him the deed was to Mrs. Miller, (may have said to his daughter,) for the land across Blackwater, near the land of witness; that he might be mistaken as to the deed to Mrs. Miller, but his recollection was that Williams told him it was to her; that this occurred before the death of Mrs. Miller’s husband.
The evidence of this witness, so far from corroborating that of Mrs. Miller, is in conflict with it. McCallister swmars that the deed was executed in Saline county, before the death of Mrs. Miller’s husband. Mrs. Miller swears that the deed was made after her husband’s death, at her house in Cooper county. The statement of these two witnesses are irreconcilable except on the theory that both of them were mistaken in regard to the character of the deeds referred to by them in their respective statements, and that they were so mistaken, we’think, is clearly shown by the evidence introduced by plaintiffs showing that on the 8th day of December, 1856, four deeds were filed for record in the recorder’s office in Saline county arid recorded by the recorder, viz : One from Thomas L. Williams to Mrs. M. M. Miller, acknowledged before Stephens, a notary
To say that non-action on the part of Mrs. Napton in the assertion of her right to the land in suit, which was occasioned by the conduct and representations of Mrs. Miller, through whom defendant claims, should be imputed to her as laches and work an estoppel, would be a total
It is also insisted that plaintiffs ought not to be allowed to recover the land without accounting for taxes paid and improvements put thereon.
So far as the question of compensation for improvements is concerned, the statute regulating ejectment suits provides an ample method for its adjustment; and, before the recovery is made effectual by the execution of a writ of possession, defendant can institute the proceeding therein provided, alleging in her petition the statutory requirements necessary to entitle her to compensation for improvements. Besides this, compensation for improvements might well be denied in this suit, as it appears that they were made by Stredger & Leaton, lessees of defendant, in consideration of the use of the land.