145 Mo. 341 | Mo. | 1898
On the twelfth day of April, 1890, plaintiffs brought suit against John Painter in the circuit court of Cape Girardeau county, alleging in the first count of their petition that he had converted to his own use the proceeds of an insurance policy on the life of their father, John JET. Clark, for which they sought to make him account, and in the second count charged that he fraudulently took the deed to certain lands in his own name instead of in the name of his wife, and prayed that he might be declared a trustee for her heirs, the plaintiffs, and required to account for rents and profits. John Painter died pending that suit, July 25, 1891, and thereupon plaintiffs caused it to be revived against his administratrix, Sophia Painter, and proceeded against her alone. On the trial of that case in the circuit court, the court dismissed the second count because the heirs of John Painter were necessary parties, and it stated no cause of action against the administratrix. At the same time the circuit court on the first count found that all the heirs of John H. Clark were barred by limitation excepting his daughter, Mrs. Amelia T. Reed, who married before her father’s death and was still under coverture, and for her the court gave judgment for $1,659.15. That judgment was reversed by this court at the April term, 1895. Reed v.
The substance of the petition is that plaintiffs are the heirs at law of Mrs. Caroline Painter; that at the time of her marriage to John Painter she was the owner in fee of a part of Lot No. 4 in Range “D” in the city of Cape Girardeau; that said lot was well worth $4,500; that said Painter fraudulently persuaded his wife to join him in a conveyance of said lot; that at that time one Archibald Dorman was the owner of a small farm in Cape Girardeau county near the city of Cape Girardeau, containing 87.37 acres; that said Painter by making fraudulent representations induced and persuaded said Caroline, his wife, and the mother of plaintiffs, to exchange her said lot for the said farm of the said Dorman, and instead of taking a deed from said Dorman to said Caroline, fraudulently took a deed from said Dorman to himself to said farm; that the only consideration for said farm was the deed from said Caroline and said Painter, conveying to said Dorman her said lot; that knowing it belonged to his wife, said Painter permitted her children by her former husband, Clark, to occupy it for awhile; that as an inducement to obtain her consent to said exchange, he represented to hi’s said wife that it would be a great advantage to her to move on it while her sons were young and inexperienced; that subsequently these plaintiffs discovered the said deed from Dorman to said Painter, and he promised to have it corrected;, that the rents and profits were $250 a year. To this petition the defendants who appeared, filed a separate answer and admitted they were heirs of John Painter, but denied all the other averments
The evidence is preserved in full. The conveyances show that Mrs. Clark received a warranty deed to the town loton June 23,1870. On the seventeenth of March, 1874, Archibald Dorman conveyed the farm referred to in the pleadings to John Painter for $4,500. On the twenty-third of March, 1874, Caroline Painter and John Painter, her husband, conveyed the town lot of Mrs. Painter to Dorman for $4,500. John Oreen, a negro man, testified for plaintiffs that he worked for Mr. Painter in 1873-4-5, doing general farm work. During that time he understood Mr. Painter to say he had traded the town lot for the Dorman farm, but he couldn’t say what he said; that Mrs. Painter asked him if he didn’t think it was a good thing for her boys. On one occasion he said he was not going to give the farm to the boys till he saw further, he didn’t know how they were going to get along. He heard Mr. and Mrs. Painter talking when he was making the fire, but they were not directing their conversation to him. He understood them to say they had sold the town place and bought the farm, and thought it was a good exchange 'for their boys, to get them out of town. The
Mr. Joyce owned afarm adjoining the Dorman farm and on one occasion he wanted a lane opened between the two places so that he could get out to the gravel road. He went to see Mr. Painter about it. Painter had no objection to the opening of the land. He said we could move his fence in two feet. Joyce told him it would be necessary to make some rails, as the fence was poor, but Mr. Painter remarked that he would not spend any money-on the place; that the farm did not all belong to him. At least he conveyed the idea to Mr. Joyce. This conversation was in 1883 or 1886.
In addition to the foregoing, plaintiffs read the deposition of Mrs. Martha Holcomb, one of the plaintiffs, and a daughter of Mrs. Caroline Clark-Painter. To this deposition defendants objected, for the reason that she was incompetent to testify by reason of the death of John Painter. Objection overruled. “My mother died in May. My mother married the second time to John Painter in 1872, to the best of my knowledge and belief. . I lived with my mother after she married John Painter about ten years. They were living at Cape Girardeau, Missouri. I am acquainted with the part of lot four, range D, of the city of Cape Girardeau, fronting on Main street, which formerly belonged to my mother. I know the place known as the Dorman farm, lying near and west of the city of Cape Girardeau. It belonged when I first knew of it, to Mr. Dorman, to the best of my knowledge and belief. A day or two before the exchange of property, lot four on Main street for the Dorman farm, I heard my mother and Mr. Painter discussing the matter. To the best of my recollection
Thomas Clark, a son of Mrs. Painter, testified, over the same objection as to competency, that his mother owned the city lot; that in his presence Mr. Painter urged his mother to make the transfer for the Dorman farm, and about two weeks later Mr. Painter told him he had effected the transfer. He first learned the deed was made to Mr. Painter in 1882 or 1883. He
UQ. Do you know of any other statement that he made conceiming the ownership of the property? A. Once after that down here at the corner of Mr. Albert’s, about the time or just before he sent the priest after mother. She had then gone to Iowa to my sister Amelia’s, and he said if we would urge her or persuade her to come back to him, he would return all that belonged to us. That is all he told me.
“Q. He was speaking then of this Dorman farm? A. Yes, sir.
“Q. What property was Mr. Painter speaking of when he said he would return to her all that belonged? A. At the time down here at the corner he didn’t mention any particular property.
ilQ. Did your mother come back after that? A. Yes, sir.”
“Q. Now, who was present at the time you told him that your mother said if he wanted to see her he must come to town and get some of her friends! A. My two sisters.
“Q. Any one else? A. No one else.
ilQ. And you told him that? A. Yes, sir.
UQ. And then he came to town and got Dr. Wilson? A. Yes, sir.
UQ. Did you meet him at the gate the first time? 'A. At the gate, yes, sir.
llQ. How long did he remain there? A. Fifteen minutes, maybe longer; anyhow fifteen minutes.
“Q. Now, what was it he said then? A. That he came to see my mother.
“Q. When he came back what did he say? A. He said that if mother would come back to him he would return what belonged to her and her children.
“Q. Meaning the Finch farm? A. Yes, sir.
“ Q. If she would come to him he would return what belonged to her; is your memory clear on that point? A. Yes, sir; it is.
“Q. Who was present at that conversation? A. My two sisters, my sister-in-law, my brother and myself and Dr. Wilson.
“Q. Where is Dr. Wilson now? A. Here in town, I suppose.
“Q. Living here? A. Yes, sir.
“ Q. Was it your sister, now Mrs. Holcomb, who was present? A. She was one of them.
“Q. And Mrs. Reed? A. She was one of them.
llQ. Your brother is dead since that time? A. Yes, sir.
‘ ‘ Q. Where did that conversation take place? A. Right in the room.
*351 11Q. What year was that? A. I don’t remember the year exactly, Mr. Cramer; I’m no hand at remembering dates. I could tell from a memorandum I have.
“Q. How long before your mother’s death? A. Oh, sometime; several years.
UQ. Several years before her death? A. Yes, sir.
UQ. Did you visit Mr. Painter after your mother and he went together again? A. Not Mr. Painter, no, sir.
“Q. Did you visit at his house? A. Yes, sir; I did.
“Q. Did you have any conversation with him? A. Not with him; no, sir.
“Q. Well, how frequently did you visit there after your mother went to live with him again? A. Once a week, I guess, on an average.
“Q. And you had no conversation with him? A. No, sir.
“Q. And still you say you were not unfriendly? A. I said when I met him "at the gate that time, we were not unfriendly.
“Q. After that you were'unfriendly? A. Yes, sir; we were.
“Q. When was it, Mr. Clark, that you met Mr. Painter at Albert’s corner, and had that conversation with him? A. During the time my mother was at our house out there, just before she went to Iowa to my sister’s.
“Q. Can you fix that date, the year she went to Iowa? A. No, sir; I can’t from memory, not the year. It was about — well, I can’t come anyways near it, I don’t believe. It was in ’86 or ’87, it seems to me.
“Q. Your mother died in 1884, didn’t she? A. Oh, yes, sir; I mean in 1874.
*352 UQ. Well, now, what was said in that conversation? A. What conversation?
“Q. At Albert’s corner? A. He called me as I was crossing the street and told me that, if mother would come back to him, he would return or make good to us all the property due us. That ,is the substance of what he said.
‘ ‘.Q. At that time you were still on friendly terms ? A. Yes, sir.
“Q. And you say Mr. Painter sent the priest to Iowa to get your mother to come back? A. Yes, sir.
“Q. How long were they separated before she came back? A. Well, it was several months, I think; not a year.
‘ ‘ Q. And the only time you heard Mr. Painter say anything at all about this matter was during the time he and your mother were apart, and he was making efforts to get her to return? A. At the time that the trade was made, or the transfer, as you call it, he remarked that the farm would be a good place for us boys; it would be a home for us.
UQ. Is there anything else you remember that he said; anything about the ownership of the farm? A. No, sir; not at that time.
“Q. Excepting the statement you say he made at the time the trade was made, the only other conversation which you heard occurred during the time he and your mother were separated and he was trying to get her to come back? A. Yes, sir.
UQ. You did not know anything about the terms of the trade? A. I heard him talking about it. I was sitting in the room, my sister, Martha, andjmyself.”
Defendants identified the bill of exceptions in first suit; offered a portion of John G-reen’s evidence as to the date where he commenced to work for Mr. Painter. A certified copy of petition in the first suit, showing it
I. The objection to the competency of Mrs. Holcomb was properly overruled. She was not a party to the original cause of action and the statute in no way affects her right to testify. She was competent at common law and since the statute. Looker v. Davis, 47 Mo. 145.
II. The important and controlling question for decision is that of limitation. Article I of the chapter on Limitations of Actions treats of real actions, and provides that “no action for the recovery of any lands or for the recovery of the possession thereof shall be commenced, had or maintained unless the plaintiff, his ancestor, predecessor, grantor or other person under whom he claims was seized or possessed of the premises in question within ten years before the commencement of such action.” R. S. 1889, sec. 6764. Section 6767 provides that “if any person entitled to commence any action under said article be at the time such right or title shall first descend or accrue either within the age of twenty-one years, or insane........ or a married woman, the time during which such disability shall continue shall not be deemed any portion of the time in this article limited, but such person may bring such action after the time so limited and within three years after such disability is removed.” Section 6769 provides that “if any person entitled to commence such action, (i. e., action to recover real estate or possession thereof) die during the continuance of any disability specified in section 6767 and no determination or judgment be had of the title, right or action to him accrued, his heirs, or any person claiming from, by or under him, may commence such action after the time in this article
As to the proposition that the improper conduct of John Painter arrested the operation of the statute, we do not think there is any evidence whatever which would justify the application of that doctrine. Plaintiffs themselves testify that on all occasions after 1876, he admitted his wife’s right. He remained in the county until her death and up to the time of the commencement of this suit. It thus appears that John Painter had been in possession of the land for nearly ten years under his deed from Dorman and during eight years of that time Mrs. Painter knew the deed was to him instead of herself. She died while yet under coverture in 1884. Her heirs did not bring this suit within three years after her death and by the express terms of the statute they are barred, unless the suit is one which can not be barred by the statute. R. S. 1889, sec. 6769; Gray v. Yates, 67 Mo. 601; Wheelock v. Overshiner, 110 Mo. 100; Hinters v. Hinters, 114 Mo. 30.
The judgment of the common pleas court is reversed.