Hutsell v. Crewse

• Decision Date: 09 March 1897
• Parties: HUTSELL et al. v. CREWSE et al.
• Court: Missouri Supreme Court

39 S.W. 449

138 Mo. 1

HUTSELL et al. v. CREWSE et al.

Supreme Court of Missouri, Division No. 1.

March 9, 1897.

PLEADINGS — WAIVER OF OBJECTIONS — DEED — CONSIDERATION — REFORMATION.

1. Where no objection is made to the petition until the trial, when the petition is amended, and evidence admitted thereunder without further objection, the defects in the petition cannot be urged as a ground of reversal.

2. Where the objection that the husband of a defendant should have been made a party is not raised by demurrer, it cannot be raised on appeal.

3. A deed which makes provision for a minor child has a meritorious consideration.

4. The description in a deed to land susceptible of identification aliunde, made on a meritorious consideration, may be corrected in equity.

Error to circuit court, Wright county; W. I. Wallace, Judge.

Action by Samuel R. Hutsell and others against Ellen R. Crewse and others to reform a deed, and for other relief. Plaintiffs had decree, and defendants bring error. Reversed in part.

Wm. O. Mead and T. T. Low, for plaintiffs in error. Nickle & Pope, for defendants in error.

BRACE, J.

The plaintiffs in this action are the children of R. M. Crewse, late of Wright county, deceased, by his first wife, and the defendants are the second wife of said deceased and her children by him. On the 1st day of September, 1879, and during the lifetime of his first wife, the said R. M. Crewse executed several deeds to each of his children by her, to lands which he owned in Missouri, and among them one to his daughter Emily C. Crewse, who was then a minor, for a tract in Wright county, described in the petition as being a part of his home place. In this deed the numbers of the township and range were omitted. Some time afterwards his wife died, and he married again. After his second marriage he continued to reside at the same place with his second wife and his children by her until the year 1884, when he died, leaving them in possession of the premises. Afterwards, on the 7th day of August, 1889, this suit was instituted, in which the plaintiffs asked to have the deed of Emily C. Crewse corrected by inserting the numbers of the township and range omitted as aforesaid, and that any title that the defendants may have in said land as the heirs of Rufus M. Crewse be divested from them, and invested in the plaintiffs. On the hearing the court granted the prayer of the petitioners, and the defendants, failing to secure a rehearing on proper motion for that purpose, bring the case here by writ of error.

1. On the trial, defendants objected to the introduction of any testimony in the case, "for the reason that there is no allegation that R. M. Crewse is dead, and no allegation that these defendants are the heirs of R. M....