Wilhite v. Wilhite
| Decision Date | 15 September 1920 |
| Parties | THOMAS H. WILHITE et al. v. MARGARET A. WILHITE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Callaway Circuit Court. -- Hon. David H. Harris, Judge.
Reversed.
Don C Carter for appellant.
(1) The testimony in this case was not sufficient to authorize a court of equity to reform the deed. Dougherty v Dougherty, 204 Mo. 228; Robinson v. Korns, 250 Mo. 675; Parker v. Vanhoozer, 142 Mo. 621; Benn v. Prichett, 163 Mo. 571; Siling v Hendrickson, 193 Mo. 365; Brocking v. Straat, 17 Mo.App. 296; Crouch v. Thompson, 254 Mo. 487; Whittaker v. Lewis, 264 Mo. 215; Stephens v. Stephens, 183 S.W. 572; Frederick v. Henderson, 94 Mo. 98; Fanning v. Doan, 139 Mo. 392; Wolz v. Venard, 253 Mo. 82; Pomeroy's Equity Jurisprudence (3 Ed.), secs. 879, 1376; Bisham's Prin. of Equity, sec. 469; 34 Cyc. 906-991; 23 R. C. L. secs. 20, 49, 65, 67. (2) The judgment and decree is for the wrong party. Under all the evidence in the case, and under the law, the judgment and decree should have been for defendant.
L. T. Searcy and Ralph T. Finley for respondents.
(1) The second point of assignment of error made by appellant to the effect that the decree was "for the wrong party" and "should have been for the defendant" presents nothing for review. Greensfelder v. Hardware Co., 189 Mo.App. 583; Koch v. Shepherd, 193 S.W. 603. Parties cannot submit a case on appeal without an assignment of error. A defense not assigned as error cannot be considered. Snyder v. Hopkins, 30 Mo. 418; Flanning v. Railway Co., 97 Mo. 195; Sanford v. Railway Co., 40 Mo.App. 15. (2) Since the court upon proper pleading and proof vested title in plaintiffs on the theory of resulting trust, against which action no error is assigned, the judgment must be affirmed even though the deed was erroneously reformed. If there be error in that part of the judgment decreeing reformation it is harmless. Majors v. Cryts, 240 Mo. 391; King v. King, 182 S.W. (Mo. App.) 1048; Parkyne v. Churchill, 246 Mo. 115; Reynolds v. Reynolds, 234 Mo. 152. (3) The decree of the trial court properly vested the title in the parties, giving plaintiffs one-half, subject to the dower interest of the defendant. (a) When William Wilhite and Margaret A. Wilhite each paid for one-half of the land in question, there was a resulting trust in each to the extent of their respective payments. Jones v. Elkins, 143 Mo. 651; McLeod v. Venable, 163 Mo. 545; Johnston v. Johnston, 173 Mo. 117; Frost v. Frost, 200 Mo. 474. (b) There being no dispute about the facts authorizing a finding that there was a resulting trust, and since there is no evidence, nor charge against the husband, William Wilhite, that he wrongfully intended to create an estate by the entirety, his heirs are entitled to a decree on the theory of such resulting trust. Moss v. Ardrey, 260 Mo. 595; Donnovan v. Griffith, 215 Mo. 166. (4) The evidence was sufficient to authorize a reformation of the deed. (a) The deed itself, containing the ambiguous clause, "share and share alike," is evidence, not resting on parol, which should be taken into consideration in determining the intention of the parties. Williamson v. Brown, 195 Mo. 329; Tennison v. Walker, 190 S.W. 12. (b) The fact that each grantee paid one-half of the purchase price should be considered in determining what character of deed they should or might desire to make. Under the law one paying for land is entitled to a conveyance, and there is no evidence, other than an ambiguous deed that an estate by the entirety was intended. (c) The evidence shows no intention on the part of either Mrs. Wilhite or her husband to create an estate by the entirety, and no such intention should be assumed or inferred. Johnston v. Johnston, 173 Mo. 119. (d) The scrivener, C. H. Early, was clearly the agent of both grantor and grantees in the deed in question, and his mistake was the mistake of both. Brown v. Tuschoff, 235 Mo. 459; Brocking v. Straat, 17 Mo.App. 305; 24 Cyc. 910, 911; Whittaker v. Lewis, 264 Mo. 215; Williamson v. Brown, 195 Mo. 329. (e) The husband of defendant was her agent in the purchase of this land, She cannot take the benefit of his acts, and also repudiate his agency. R. S. 1909, sec. 8304; Kirkpatrick v. Pease, 202 Mo. 490; Rice, Stix D. G. Co. v. Sally, 176 Mo. 124; Shinn v. Mule Co., 109 Mo.App. 557; Porter v. Woods, 138 Mo. 539.
WHITE, C. Railey and Mozley, CC., concur.
This suit is brought to determine title to forty acres of land in Callaway County. The defendant, Margaret A. Wilhite, is the widow, and the plaintiffs are the heirs at law, of William Wilhite, deceased.
In December, 1903, William Wilhite and Margaret A. Wilhite purchased and had conveyed to them by Wesley Wright the forty acres of land in dispute.
William Wilhite and his wife and no children since their marriage, but each had children by a former marriage, none of whom lived with them. They moved on to the land at the time of the purchase, and lived there until the death of William Wilhite, which occurred in September, 1910. Margaret Wilhite continued in possession of the land until the filing of this suit in March, 1918. In the purchase of the land William Wilhite and Margaret A. Wilhite each paid $ 800 to Wesley Wright, as consideration, and the deed recites the consideration of $ 1600 as paid by both. The introductory recitals and the granting clause in the deed are as follows:
Then follows a description of the property. The habendum is "unto said parties of the second part and unto their heirs and assigns forever" and the usual covenants "unto the said parties of the second part and unto their heirs and assigns forever."
The amended petition upon which the cause was tried sets out in the usual form a cause of action to determine title under Section 2535; it then alleges the relationship of the parties, describes the deed by which the property was acquired, and alleges that it was the intention of the parties by the said deed to vest the title in William Wilhite and his wife as tenants in common, and not as joint tenants. The petition then prays the court to determine the title, asserting that said deed by the use of the words "share and share alike" in the recital creates a tenancy in common and asks the court to determine the title of the parties; but in alternative prays if the court should find the deed in form vests an estate other than a tenancy in common in William Wilhite and Margaret A. Wilhite, that the same be reformed so as to conform to the intention of the parties.
The answer admits the allegations as to the relationship of the parties, alleges the payment by each of grantees of $ 800 of the consideration money, asserts title in the defendant as the survivor of her husband in that the deed vested the title in them by the entireties, and prays the court to ascertain and determine the title.
The court, after hearing the evidence, found the facts as to the relationship of the parties and the payment of the purchase money as above set out, and held that the deed on its face purported to convey an estate by the entireties, but that such was contrary to the intention of the parties, which was to create a tenancy in common, ordered the deed reformed by inserting in the habendum the words "as tenants in common and not as tenants by the entirety," and adjudged that the plaintiffs were entitled to an undivided half interest in fee simple in the premises, subject to the dower and homestead interest of the defendant in the same. The defendant from that judgment appealed to this court.
I. There is no doubt but that the use of the words "share and share alike" if inserted in the operative parts of the deed, in the granting clause or in the habendum, would have created a tenancy in common. The words are inconsistent, when properly used, with the existence of a joint tenancy or a tenancy by the entirety. [2 Jarman on Wills, p. 1791; Freeman on Co-Tenancy, sections 23 and 25; Kellogg v. Burnett, 74 N.J.Eq. 304, 69 A. 196, 308; Jenne v. Jenne, 271 Ill. 526, 111 N.E. 540; Adams v. Woolman, 50 N.J.Eq. 516, 26 A. 451; Shattuck v. Wall, 174 Mass. 167, 54 N.E. 488, 169, 54 N.E. 488.]
But it will be noticed the words "share and share alike" appear in the premises of the deed as a recital merely. They may have referred to the consideration paid and not to the estate acquired. Recent cases have come before this court in which similar expressions in the premises or introductory part of a deed were held to be ineffectual to create a tenancy in common. [Ashbaugh v. Ashbaugh, 273 Mo. 353, 201 S.W. 72, 358, 359-60, 201 S.W. 72; ...
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