219 Mo. 47 | Mo. | 1909
From the plaintiffs’ petition, as set out in the abstract, it is not entirely clear what kind of a suit this was intended to be. Plaintiffs in their brief say the petition is in two counts, but if so some of it has been omitted from the abstract, as it is evident some of the judgment or decree has also been omitted both from the abstract and from the short transcript on which the cause was brought to this court. But the suit was tried on the theory that it was a suit for the partition of land and as both parties seem to acquiesce in that view of the case and as the petition is susceptible of that construction we will so consider it.
The land in question lies in Bates county. It with other lands was owned in his lifetime by Samuel Gross-hart, who was the grandfather of the plaintiffs Annie and Bennie Starr and of the defendant Margaret Kis-ner. Grosshart died intestate in 1862, leaving sis children, four sons and two daughters. One of the daughters, Mildred the wife of Dr. D. L. Lee, died intestate in 1882, leaving her husband, Dr. Lee, and four chil
The plaintiffs claim title as heirs of their mother, each an undivided one-fourth, conceding to their sister Mrs. Kisner, and to the defendant Bartz as assignee of their brother Joel, each an undivided one-fourth, but Mrs. Kisner asserts no claim to the fifty acres involved in this suit; the land she claims is in question in another suit, which is a twin to this one and will be considered next after this one.
In 1887, five years after the death of his wife, Dr. Lee executed a deed whereby he essayed to convey (and if he had title did convey) to his son Joel the land in suit, and December 31, 1900, Joel conveyed whatever interest he had to defendant Bartz. Dr. Lee died in 1898.
If Dr. Lee held the fee simple title in 1887, when he made the deed to Joel, the plaintiffs have no title to the land, but if he had then only a life estate, by curtesy, the plaintiffs have a right each to one-fourth, unless they have lost their right by operation of the Statute of Limitations or are estopped to assert it.
We will now turn back to the source of title. The plaintiffs’ mother married Dr. Lee, their father, in 1855, when the common law as to marital rights prevailed. Samuel Grosshart in his lifetime owned about seven hundred acres of land, the most of it in Cass county but about one hundred and forty acres 'lay in Bates county, the land in this suit is fifty acres of the Bates county land. Grosshart died in 1862 and descent was then east on his six children above named. In 1877 these six heirs made an amicable partition of the land they had inherited, setting off to each his or
Sometime after the execution of the partition deed or deeds and after Dr. Lee and Mrs. Lee had taken possession of the land allotted to her, Dr. Lee went to Cass county where the other heirs lived and told them that the deed they had made setting apart the Bates county land to Mrs. Lee was defective in respect of the acknowledgment, and to cure that defect, he asked them to execute another deed which he had already prepared and which was a quitclaim deed to himself and his wife for the Bates county land and on that request they executed the deed, that is, all of them but one, to-wit, Gr. W. G-rosshart. That occurred in 1877 or 1878. That deed was not put on record during the
I. The quitclaim deed to Dr. Lee and wife, made by her coheirs after the original partition deed had been executed and after he and his wife had taken possession of the land set apart to her in the partition, conveyed no title at all. After the partition had gone into effect the brothers and sister of Mrs. Lee had no title to the land they had allotted to her, no interest
It is insisted, however, that the record showed the title to be in Dr. Lee when he made the deed to Joel, and that defendant Bartz relied on the record when he purchased. The evidence does show that Bartz had the records examined and he became satisfied from the examination that his vendor had a good title. His examination of the record, if he conducted it with reasonable care, must have shown him that the land was owned by Samuel G-rosshart at the time of his death in 3862, and he should have known that the title then passed either to a devisee, if there was a will, or to the heirs of Grosshart, and it behooved him to inquire where
It is the law of this State that a purchaser for value under a quitclaim deed acquires whatever title the grantor had at the time of the delivery of the deed. [Wilson v. Albert, 89 Mo; 537; McAnaw v. Tiffin, 143 Mo. 667.] We have also held that a purchaser for value under a quitclaim deed is under the protection of our registry act and that his title, so acquired, is good against a prior unrecorded deed of which he had no actual notice. [Fox v. Hall, 74 Mo. 315; Boogher v. Neece, 75 Mo. 383; Willingham v. Hardin, 75 Mo. 429.] But that is the extent to which our law has gone in upholding the title under a quitclaim deed. A purchaser under such a deed is not a bona fide purchaser; he takes whatever title the grantor had to convey subject to existing equities, except in cases where the registry act protects his title. [Ridgeway v. Holliday, 59 Mo. 444; Campbell v. Laclede Gas Lt. Co., 84 Mo. 352; Schradski v. Albright, 93 Mo. 42; Hope v. Blair, 105 Mo. 85.] In Campbell v. Laclede Gas Lt. Co., above cited, the court, after saying that the rule that the purchaser under a quitclaim deed took subject to existing equities was subject to the exception that the equities referred
II. Defendant contends that the plaintiff’s right to maintain a suit of this kind is barred by the Statute of Limitations. The point presented is that the mother of the plaintiff in her lifetime could have maintained a suit in equity against her husband to divest him of the title he had fraudulently obtained or to have him
But this is not that kind of a suit. These plaintiffs are not seeking to set aside the deed their father obtained on the ground of his fraud in obtaining it. They say that on the face of the quitclaim deed itself, in the light of the record title, the deed conveyed nothing, that the title was in their mother by inheritance from her father and by the allotment of this land to her in the amicable partition. And so the evidence shows. The quitclaim deed which their father afterwards obtained is not in their way, it was a nullity in his hands and is a nullity in the hands of his assignee with notice. There was nothing about which Mrs.Lee could go to law with her husband, in her lifetime. At the most that could be said for the deed it was but a cloud on her title, but it was not even that because it was not recorded, it was concealed during her lifetime and not recorded until five years after her death. Certainly no cloud was cast on her title while she lived, and she knew nothing of the existence of the deed. What then could she have said to a court of equity if she had gone into that court to complain of her husband? He had a right to the possession of the land during the lifetime of his wife, because so the law was at the date of his marriage in 1855, and so it was at the date the title descended to. his wife on the death of her father in 1862, and after her death he was entitled to possession as tenant by the
III. But it is said they are estopped, that they have stood by and seen all these vast improvements made and have suffered their brother to sell this land to defendant Bartz and have suffered Bartz to continue making improvements, etc. As to the improvements the evidence shows that part of them at least were made by Joel during the lifetime of his father. But the evidence shows and the chancellor found that, weighing the value of the improvements against the rents and profits, the balance in favor of the improvements was only $64.50 and that is allowed by the decree to the defendant Bartz out of the proceeds of the sale to be made, and there is no complaint now made of the decree on that account.
The evidence shows that at about the time Dr. Lee made the deed conveying this land to Joel he made a deed to his daughter Mrs. Kisner conveying to her the other 90 acres of this Bates county land and that conveyance is the subject of the other suit now pending as above mentioned. And about the same time he made to each of the plaintiffs a deed to certain land, to what extent in value as compared with that conveyed to Joel and Mrs. Kisner does not clearly appear, but that is unimportant because the land their father conveyed to the plaintiffs was land of his own, not derived from his wife; it is referred to by counsel for defendant in connection with the plea of estoppel. It was not shown, however, that either of the plaintiffs knew the character of the title that was attempted to be conveyed to Mrs. Kisner and Joel or in fact that they knew; any
We find no error in'the record. The judgment is affirmed.