Olden v. Hendrick

• Decision Date: 02 June 1890
• Parties: OLDEN et al. v. HENDRICK et al.
• Court: Missouri Supreme Court

13 S.W. 821

100 Mo. 533

OLDEN et al. v. HENDRICK et al.

Supreme Court of Missouri.

June 2, 1890.

ESTOPPEL IN PAIS — PLEADING.

1. Where a father in embarrassed circumstances buys land, and takes a deed in the name of his son, with the understanding that the latter should hold the title for his benefit, and on the faith of such understanding builds on the land, plats it, and sells many of the lots, the widow and heirs of the son, after 25 years of non-claim, are estopped to assert title to the land as against the father's grantees, though they have made no improvements on the land, and though the deed to the son was duly recorded.

2. Where the father's grantees, on their own motion and without objection, have been made parties to an action of partition between the widow and children of the son, their answer, which sets up the facts, and avers that by reason thereof the widow and children are estopped, and to which no objection was taken by way of demurrer or motion to make more definite and certain, will, after judgment, be held to sufficiently plead the estoppel.

Appeal from circuit court, Greene county; W. D. HUBBARD, Judge.

Boyd & Delaney, for appellants. F. S. Heffernan, for respondents.

BLACK, J.

The plaintiff Eliza C. Olden is the widow of William R. Hendrick, and she and her present husband brought this suit against her children by her former marriage for the partition of lots 29 and 30, in Hendrick and Jones' addition to the city of Springfield. Fannie E. Holland and her husband, George Holland, were made defendants on their own motion. The controversy is between Holland and wife on the one hand, and the other parties to the suit on the other. The two lots are a part of 80 acres of land formerly owned by L. Hendrick, who was the father of William R. Hendrick, the former husband of the plaintiff Eliza. The 80-acre tract was sold under a judgment in favor of Greene county against L. Hendrick and others, and William R. Hendrick became the purchaser, and received a sheriff's deed dated in December, 1850. This is the title of the widow and heirs of William R. Hendrick. In 1859, L. Hendrick, William R. Hendrick, and N. T. Jones joined in making and filing a plat of Hendrick and Jones' addition, and the lots in question are a part of the property covered by the plat. In November of the same year, 1859, L. Hendrick, by warranty deed and for a full consideration, conveyed four lots to John Norris; and thereafter, and in the same year, Norris conveyed two of the lots to the defendant Fannie E. Holland. She and her husband claim under this title. On the face of the deeds the title, it will be seen, is in the widow and heirs of William R. Hendrick. The controlling question in the case arises over the equitable estoppel set up in the answer of Holland and wife. The evidence on this branch of the case is, in substance, this: The sheriff's deed to William was executed and recorded in 1850, and the consideration therein recited is $345. L. Hendrick, father of William and the judgment debtor, was financially embarrassed; but he borrowed $345, and with the money bought in the land, taking the deed in the name of his son William. On this point some hearsay evidence was admitted, but, excluding all such evidence, it is still clear that the money was borrowed by L. Hendrick, and by him used in paying for the property so purchased at the sheriff's sale. The plaintiff, being called as a witness by the defendants Holland and wife, testified that she married William in 1864, and lived with him until his death, in 1879. She says: "I never heard him speak of owning this land or of claiming it. The first I heard of it was in 1883, from Mr. Matlock, and then I had this suit brought. My boys put a wire fence around the lots." A son of L. Hendrick, and brother of William, says he knew of the sheriff's sale; that he is satisfied his father bought in the land, taking a deed in the name of William; that William was an invalid, living with the father, and had no property, except a horse; that the land was sold at sheriff's sale because of trouble which his father had with the Miller heirs; that the sale of the lots to Norris was talked...