189 Mo. 447 | Mo. | 1905
Rebecca Smith died intestate in October, 1901, in Linn county, owning no property in her own name and leaving the respondent William Smith, a son, and certain other sons and daughter’s, and the descendants of those dead, her only heirs at law. Certain of her surviving children, together with certain of her adult grandchildren, and certain minors of the same blood kin through their curator, brought this, suit in August, 1902, against William Smith and certain minor non-resident grandchildren, and one Jackson Fyke and
The interest of Jackson Fyke in the land remains undisclosed. The interest of defendant Meacham is alleged by the petition and admitted by the answer of William Smith to be that of a present purchaser of said real estate, together with an adjoining tract of 120 acres, lying adjacent and south of the land in question and owned by respondent William Smith from him, without notice of the said trust or the equities of Rebecca Smith’s heirs, under an executory contract of purchase for $8,400, on which Meacham paid $250 as an advance payment — the balance of the purchase money being due on March 1, 1903, and which contract of purchase the said Meacham was entitled to enforce, and by which, it is alleged in the petition, he obligated himself to pay one-half the entire purchase price, or $4,200, for so much of the said real estate as was held in trust.
The petition is a voluminous pleading, which, in substance and effect after setting forth the relationship of the parties and alleging their respective aliquot interests as heirs of Rebecca Smith, avers that Rebecca was the owner in fee of said 1201 acres of land, that the legal title at her death and for many years prior thereto was and still is in the name of her son William, and that he held the same in trust for the use and benefit of Rebecca, his mother, and since her-death in trust for her heirs. That in 1884 Rebecca Smith owned a large amount of money and personal property, and placed $3,500 thereof in the hands of her son William to invest in real estate in Linn county for her use and benefit, that the said William purchased the de
The prayer is for a decree that William Smith holds the legal title to said first mentioned real estate in trust for the use, benefit and enjoyment of the heirs of Rebecca Smith. That the said heirs be decreed entitled to the proceeds of one-half of the Meacham sale in the proportion stated in the petition. That $4,200 of the Meacham purchase money should be decreed paid into court for the use and benefit of said heirs and that upon such payment into court of said trust fund and the payment by Meacham to William Smith of the share of the purchase money arising from the sale of Smith’s own land, the title to all the land be decreed vested in Meacham, and that the share of the purchase money impressed with the said trust be partitioned among the heirs of Rebecca Smith in proportion to their respective interests, and that the $3,000 deed of trust be de
The- separate answer of the defendant William Smith raises the only issues (the other defendants defaulting), and after admitting the death and intestacy of Rebecca Smith as alleged, it denies she was the owner of the real estate in question and avers that had she died seized or possessed of any estate, then the plaintiffs and defendants, together with Oscar Crossland and one Preston, grandchildren of hers and entitled as such to certain interests in her estate, would be the heirs at law of Rebecca Smith. The answer then alleges that on the 29th (day of May, 1884, the defendant William contracted to purchase of James O. Crandall all the real estate in question, consisting of 240 acres, for the price and sum of $4,800, and received Crandall’s title bond for a conveyance to be executed on the 1st day of March, 1885. That in compliance with said bond the said Crandall and his wife on the 27th day of November, 1885, executed a general warranty deed to defendant to all said real estate. That Rebecca Smith was possesed of certain money and means acquired out of the estate of her deceased husband, defendant’s father, on account of her dower interest in his estate in Illinois, where her husband died, and the answer then proceeds as follows:
“That after said defendant purchased said 240 acres of land aforesaid, a part of which is described in plaintiffs’ petition, said defendant received from his mother, said Rebecca Smith, her dower money aforesaid, to the amount of $1,500, and that amount only, and which he used in part payment for said 240 acres of land, and that it was agreed between him and his mother that she was to have an interest in said land the same, and that only, as a dower interest therein for and during her natural life, the same as she had owned in her deceased husband’s estate in Illinois, in considera*455 tion of said money so furnished said defendant, and at her death said right and interest in said land was to absolutely terminate and end. That by. a subsequent arrangement between said defendant and his mother she, with one of her sons, a brother of said defendant, occupied and used a part of said 240 acres of land for a considerable period of time, and that while they so occupied and used said land, said defendant furnished his mother, upon her request so to do, a large amount of money, stock and farm supplies, used and consumed by herself and said son, with whom she was then living, amounting in the aggregate to the sum of $1,760, and more. That said defendant also paid out for his mother with his own money and means the further amount of $450.45 in the aggregate, after he had received said sum of $1,500 from her. That said defendant’s mother and her son with whom she undertook to carry on farming and stock raising for a time on said land, made a failure in their said attempt and lost substantially all his mother had invested in said business,' to the amount and more, as aforesaid, and having made such failure and having used up and expended largely more money and means furnished by said defendant than the $1,500 he had theretofore obtained from her, she returned to said defendant’s home, where she had resided before undertaking said farming business, and thereafter resided with said defendant until her death; and that during said time, after her return to his home, said defendant kept, maintained, cared for and supported her at his own expense and entirely out of his own means, and that at her death he had her remains conveyed back to the State of Illinois tor interment and paid all the expenses connected therewith.
“That when said Rebecca Smith returned to said defendant’s home to reside, after her failure in farming, she disclaimed any further interest in said land or any part thereof as dower or any other interest therein, for the reason and because said defendant had fully*456 and entirely paid her back all the money, and largely more, than she had furnished him, as aforesaid, and in further consideration that said defendant would continue to support, maintain, and care for her, as aforesaid, and at her death give her remains proper interment at his own expenses, and which undertaking said defendant says he faithfully carried out and, in every respect, kept and fulfilled.”
It is next alleged that at the time Crandall and his wife executed the deed to respondent William, Rebecca Smith was present, knew about the making of said deed and knew it was made solely and absolutely to him, William, and fully acquiesced therein, and that furthermore Rebecca was present when the defendant William executed a deed of trust on the 240 acres of land for the purpose of securing $2,500 of borrowed money to complete the payment to Crandall of the original purchase money, and that she interposed no objections to his doing so but approved the same.
After admitting, the contract of sale to Meacham at the price and on-the advanced payment alleged in the petition and on the terms stated therein and that Meacham on full payment would be entitled to a deed, the answer denies every allegation of the petition not theretofore specifically admitted to be true.
The reply denied every allegation in the answer setting up new matter, and on issues thus outlined the cause was heard in October, 1902, and the chancellor rendered judgment dismissing plaintiffs’ bill, from which judgment plaintiffs in due form appeal here.
Was the equitable problem submitted to the chancellor solved correctly? We think not, and this for the following reasons:
There was no proof that Oscar Crossland and-Preston were grandchildren and heirs of Rebecca Smith as alleged in the answer. Nor was there any proof that the estate, if any, of Rebecca Smith in the Crandall land was to follow and be impressed with the
At the very threshold of the consideration of-the case on review, lies the issue of fact as to what money, if any, was turned over by Rebecca Smith to her son William and by him used in the purchase of the Crandall land, the investigation of' which leads us to the State of Illinois and to the estate of Johnson Smith, there situate, the said Johnson being the ancestor of the plaintiffs and of the defendant William, and the deceased husband of Rebecca. It seems that Johnson Smith died in the State of Illinois, intestate', seized of certain real estate there lying, and leaving a widow, Rebecca, and seven heirs. The statutes of Illinois relating to dower and descents were not introduced in evidence, and in the absence of such proof the ‘ ‘ system of unwritten law, not evidenced by statutes, but by tradition and the opinions and judgments of the sages of the law” (Riddick v. Walsh, 15 Mo. l. c. 536), known as the common law, must be assumed to be in force there, for divers reasons, e. g. because, prior to our Independence, Illinois was a part of the dominions of the King of Great Britain, because it was settled by English speaking people, who brought all the principles of the common law applicable to their situation with them as an inherited birthright, and because Illinois was a part of the Northwestern Territory, and, by the provisions of the Ordinance of July 13th, 1787, ceding that territory, the common law became the law of the land.
William Smith by answer admits that $1,500 of this money was turned over to him and was invested in the Crandall farm. Appellants concede that the condition of the proof is such that there is no satisfactory évidence of more than that sum having been so employed, and in this situation it becomes material to ascertain, if possible, under what arrangement this money was turned over to William Smith and soused by him. Appellants contend it was under an understanding that the widow was to pay half of the purchase-price of the Crandall farm, and was to have the north 120 acres thereof on which was a dwelling house, and that William Smith was to pay the other half and waste own the south 120 acres of the Crandall tract on which was another dwelling house. Appellants concede that the widow did not pay one-half of the purchase-price, but they contend that the investment was made under such circumstances that to make her own a moiety the widow should bear the burden of one-half of $1,800, the balance of the purchase-price, which was merged into a certain, mortgage indebtedness due an insurance company, presently to be considered. On the other hand, respondent contends in his brief in this court (somewhat at variance with his pleading) that while he received $1500 from his mother to invest, it was never invested in the land, but was repaid to her by him under circumstances presently to be considered. This brings us to the question of what arrangement existed between William Smith and his mother at the time of this investment and what were the circumstances surrounding the parties prior to and at the time
As prone to happen in family compacts when the parties deal with each other loosely under the close and tender confidences of the domestic relation, and not at arm’s length and face to face under the safeguards of correct business form, it becomes a delicate task to reconstruct ancient matters with fidelity and in true perspective when some of the actors are dead, when memory is twisted by self interest and conclusions, as wishes father to the thought, usurp the office of facts. Such troubles exist in this case, where grains of fact, as wheat, are hid in bushels of chaff, as conclusions; but we think the record places beyond reasonable doubt the ultimate fact that the aforesaid money of the mother was not taken over by William as a loan and then repaid, and was not placed with him for investment and returned to her prior to investment, and this is predicated of the following condition of things:
It appears that in the May preceding the Illinois sale, to-wit, in May, 1884, William Smith came to Linn county, Missouri, and negotiated the purchase of the Crandall tract for $5,800. Some of the evidence indicates that he agreed to pay $19.50 per acre for 240 acres, amounting to $4,680. Other evidence indicates that he agreed to pay over $5,000.. The answer avers the purchase-price was $4,800 and the cause is practically submitted to us on both sides on the theory that such is the correct amount. The original contract of purchase, if one were entered into, is not in evidence, but a bond was executed by Crandall on the twenty-ninth day of May, 1884, and it is not uninstructive to give heed to its recitals, which are, inter alia, that the real estate was to be conveyed to William Smith on the first day of March, 1885, that the sum of $4,850' remained due on the purchase-price (the bond being silent as to the advance payment), that this balance was
There,is a controversy as to the'ownership of the money, conceded to be $450, paid Crandall as an advance payment, and ingenious speculation is indulged in pro and con anent that ownership. A priori reasoning would seem to result in the conclusion that it is more likely to have been a payment out of a common fund than otherwise, but we consider the question more curious than decisive, and therefore discard its consideration, farther than to say that in our opinion the onus was on appellants to show that the mother participated in this payment, and that they failed to carry that burden satisfactorily to the legal mind.
The precise time that William and Rebecca Smith and their respective families entered into possession of this land is not disclosed, but by reasonable inferences, fairly to be deduced from proved facts, it may be arrived at that either in the fall of 1884, or in the early winter or spring of 1885, Rebecca Smith and her son Jasper took possession of the north 120 acres and William Smith and his family took possession of the south 120 acres, moved into the dwelling houses thereon and supplied themselves with the necessary implements of husbandry, provisions and stock incident to carrying on farming operations independently of each other.
Serving no useful purpose; we shall not undertake to present here the evidence in detail, but it shows that possibly during the entire year of 1885 Jasper Smith anj his mother farmed the 120 acres they took possession of, and it seems that Jasper fell into trouble, exe
Rebutting the showing made by appellants is evidence from the sons and daughters of respondent to the effect that their grandmother on returning to their father’s home frequently referred to herself as “broken up.” But we are inclined to the notion that these expressions, taken with all the surrounding facts and circumstances, were indicative of the emotions of an old lady who had fallen on evil and reminiscent days, rather than as assertions of a settled business fact. And, to sum up, in our opinion the record strongly preponderates in favor of the contention of appellants that Rebecca Smith had, and died with, an interest in the land corresponding to the amount of her payment of $1,500 on its purchase. This being so, we do not think the state of proof and the equities of all parties require us to hold that the heirs of Rebecca Smith are entitled to one-half of the real estate, or the north half, and that their interests therein should be impressed with the amount, of one-half of the $1800 or $1900 paid out of the insurance loan, as contended by appellants, but we think the very right of the case will be more justly attained in disentangling the complications-by giving the heirs such proportion of the land as $1,500 bears to $4,800, i. e., fifteen-forty-eighths or five-sixteenths, but this should free of all mortgage liens. And this hold
The foregoing view leaves out of account respondent’s'contention of laches urged here as a justification for the finding of the chancellor, nisi, which contention will now receive attention. It will be noted that the Statute of Limitations is not pleaded as a defense. Evidently the .learned counsel for respondent deemed such defense not applicable to the facts of the case and therefore did not plead the statute, as is necessary, if relied on as a defense; in possibly all cases except eject-' ment suits. Neither does the answer plead laches or staleness as a defense. On this score it may be said, that while it has been held that it is necessary to plead laches in order to invoke them as a defense (Bliss v. Prichard, 67 Mo. l. c. 191), yet the better doctrine seems to be that the defense of laches is one of which it is not necessary to take advantage by the pleadings, and if the case as it appears at the hearing is liable to such objections, the court may and usually will remain passive and refuse relief and decline to entertain the suit. [12 Ency. Pl. & Pr., 829, and cases cited; Murphy v. DeFrance, 105 Mo. l. c. 69, et seq.] But there is another proposition that must be reckoned with in this connection, viz., that laches is a question of fact on the evidence, determinable upon the particular facts and circumstances of the case. [Pike v. Martindale, 91 Mo. l. c. 285.] In this particular courts treat laches the same as they do the kindred question of negligence, that is to say, there is no cast-iron rule for determining
The record does not satisfy us of the existence of the mortgage for $3,000 pleaded in the petition. If proof thereof was offered, it has escaped us, although the case was submitted on the theory that it existed. The chancellor should take proof on this issue of fact. If such mortgage exists, it should be satisfied solely out of the interest of William Smith in the real estate, if the same be of sufficient value to pay it off. Neither can we say that the executory contract’ of Meaeham looking to the purchase of the land will be consummated. It may be it cannot be specifically enforced. Proof on this question should be taken by the chancellor. Nor are we satisfied at this time to grant a partition and distribution of the proceeds of the Meaeham sale,' should they be paid into court. Such partition and distribution should await an administration upon the estate of Rebecca Smith, because the interests of her children by descent cast are subject to the payment of her debts, and while the question is not here and there
The cause is reversed and remanded with directions to the court below to take proof on the present existence of a mortgage on the whole tract; to decree that the mortgage, if existing, be paid by William Smith, and, as between him and the other heirs, should become a lien on his interest in the real estate and be satisfied therefrom in the first instance; to decree, further, that the heirs of Rebecca Smith, including the respondent William, are entitled to an undivided five-sixteenths of the land described in the petition; and to make such decree in regard to the Meacham sale as the facts, warrant, and to otherwise proceed in accordance with this opinion.