4 S.W. 511 (Mo. 1887), Bobb v. Bobb

Citation:4 S.W. 511, 89 Mo. 411
Opinion Judge:Black, J.
Party Name:Bobb v. Bobb et al
Attorney:Jeff. Chandler for appellant, Charles Bobb. M. Kinealy also for appellants, George L. Bobb, Charles Bobb and Cora B. Taylor. Hitchcock, Madill & Finkelnburg for John H. Bobb and Charles L. Bobb's representatives, respondents.
Case Date:June 07, 1887
Court:Supreme Court of Missouri
 
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Page 511

4 S.W. 511 (Mo. 1887)

89 Mo. 411

Bobb

v.

Bobb et al

Supreme Court of Missouri

June 7, 1887

Page 512

Cross-Appeals from St. Louis Court of Appeals.

Affirmed.

Jeff. Chandler for appellant, Charles Bobb.

(1) It is an inflexible rule of equity pleadings that the equitable title upon which plaintiff claims must be set out with certainty, and recovery must be had on the title so set out. Story's Eq. Pls., secs. 241, 258; Ibid. 27, 28; Crockett v. Lee, 7 Wheat. 527; Railroad v. Stewart, 4 C. E. Green, 71; Jones v. Louderman, 37 Mo. 290. In this case, however, there is a total departure in the judgment from the cause of action stated in the petition. Plaintiff cannot declare upon one cause of action and recover upon another. Dougherty v. Matthews, 35 Mo. 520; Jones v. Louderman, 37 Mo. 290; Harris v. Railroad, 39 Mo. 309, 310; Merle v. Hascall, 10 Mo. 406. Neither can plaintiff contradict the allegations of his petition. He cannot now be heard to say in contradiction of his petition that no money was in fact to be paid. 34 Mo. 246; 32 Mo. 203. (2) The doctrine advanced by the other side that a deed cannot be shown to have been given for no consideration is not correct. Haigh v. Kage, 7 Ch. [L. R.] 469; Davis v. Otty, 35 Beav. 208; Kelly v. Johnson, 28 Mo. 449. (3) If it be true that Charles Bobb is estopped from showing that there was no consideration for the deed of 1843, for the purpose of defeating the deed, he may show in this very case that it has not been paid and may recover it in this action. Besides the decree is erroneous in not allowing to the vendor in his account as trustee the purchase price of said land with interest thereon at the same rate which plaintiff regards as so equitable in his behalf. Lenman v. Whitney, 4 Rus. 422; Chilton v. Braiden, 2 Black, 458; Manly v. Slason, 21 Vt. 271; Garson v. Green, 1 John. Ch. 308; Cordova v. Hood, 17 Wall. 5; Mackuth v. Symmons, 15 Ves. 329; Lewis v. Harkin, 23 Wall. 125. (4) Plaintiff cannot adopt the sale of the property by Charles Bobb to Hannah Letcher, and by Hannah Letcher to Charles Bobb, and hold Charles Bobb responsible as a trustee by purchase, without conceding to said Charles Bobb whatever equities spring out of the transaction in his favor. Brooms Legal Maxims, 681, top, 522; Lincoln v. Wright, 4 De G. & J. 22; Smith v. Brisby, 15 Mo. 392. The vendor of an equitable title is entitled to his lien for the purchase price. Bledsoe v. Gaines, 30 Mo. 451; Edmondston v. Philips, 73 Mo. 60; Real Estate, etc., v. Collonious, 63 Mo. 295. A vendor's lien exists against subsequent purchasers and incumbrances when they advance no new consideration or have notice. Hallock v. Smith, 3 Barb. 267. (5) If the estate was derived from Charles Bobb, then he is not compelled to account until the heirs become of age. Since 1835, the law in this state has exempted parents, as natural guardians, from accounting for the estates of their children when derived from them. Rev. Code, 1835, 294; R. S., 1845, --; 1 Wag. Stat., 1872, p. 672, sec. 2. (6) Parol evidence to show the origin of the estate is admissible. Fontaine v. Boatmen's, 57 Mo. 552; Hollocher v. Hollocher, 62 Mo. 267.

M. Kinealy also for appellants, George L. Bobb, Charles Bobb and Cora B. Taylor.

(1) A new accounting should be ordered without compound interest. In taking the account annual balances should have been struck. In re Cruce, 81 Mo. 677. (2) Where children have large private fortunes an allowance will be made to the father for their maintenance and education certainly when the father's means are limited. Matter of Marx, 5 Abbott's New Cases [N. Y.] 224; Harring v. Coles, 2 Bradf. 349, 353; Matter of Kane, 2 Barb. Ch. 375, 377, 380; In re Burke, 4 Sandf. Ch. 617; Jervoise v. Silk, Cooper's Ch. 52; Maberly v. Turton, 14 Ves. 499; Cavendish v. Mercer, 5 Ves. 195n. And such an allowance will be made to reimburse the father for past maintenance, etc. See previous cases, and also Reeves v. Brymer, 6 Ves, Jr. 425; Sherwood v. Smith, Id. 454; Sisson v. Shaw, 9 Ves. 285; Ex Parte Darlington, 1 Ball and B. 240, side page. (3) The decree of the St. Louis land court is void against George L. Bobb and Cora B. Taylor. Creath v. Smith, 20 Mo. 113; Shields v. Powers, 29 Mo. 315; Mathew v. Sprague, 1 Curtis, 457; Chandler v. McKinney, 6 Mich. 217; Car v. Fielden, 18 Ill. 77; Peachy v. Harrison, 1 Ld. Raym. 252. (4) Mr. Bobb's children are all volunteers and it is settled law that a volunteer cannot seek the reformation of a deed unless the donor intimates his desire that such relief be decreed. Adair v. McDonald, 42 Ga. 506. (5) In examining the claim preferred by George L. Bobb and Cora B. Taylor it is to be remembered that...

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