Strock v. Eagle
| Decision Date | 02 April 1932 |
| Docket Number | 30283 |
| Citation | 48 S.W.2d 851,330 Mo. 12 |
| Parties | M. F. Strock v. Stewart N. Eagle et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Adair Circuit Court; Hon. Paul D. Higbee Judge.
Affirmed (as of the date of submission plaintiff having died since submission.)
J M. Wattenbarger for appellants.
(1) Respondent making his solemn declaration in writing that he would claim no interest in the land in question is now estopped from so doing. Childers v. Berger, 21 S.W.2d 510. One is held to representation made or position assumed, where otherwise inequitable consequences would result to another, who having right to do so under all circumstances, has in good faith, relied thereon. State ex rel. Consolidated School Dist. No. 2 of Pike County v Haid, 41 S.W.2d 806. Where justice and right demands, equitable estoppel applies. Id. As the claim of respondent now is inconsistent with the position he assumed at the time of the making of the deed, and which claim now asserted which results in injury to the appellants, descendants of the wife, respondent is estopped by all principles of estoppel and justice. 21 C. J. 1118, sec. 122; State ex rel. Moss v. Hamilton, 303 Mo. 302, 260 S.W. 406; Grafeman Dairy Co. v. Western Bank, 235 S.W. 435, and numerous cases cited. (2) Respondent having received the consideration for which he contracted, he is now estopped from repudiating it. Hubbard v. Slavens, 218 Mo. 622; Swofferd D. G. Co. v. Bank of Blue Mountain, 81 Mo.App. 46; Reaves v. Reaves, 135 Mo.App. 199; Hedges v. Warren, 225 Mo. 255; Sage v. Finney, 156 Mo.App. 30. (3) A legal title may be defeated by estoppel. Hubbard v. Slavens, supra; Waters v. Hubbard, 117 S.W. 1112. We respectfully submit that this judgment should be reversed with directions.
Miles & Jayne for respondent.
(1) Respondent, as the widower of Drusilla E. Strock, became the owner of an undivided one-half interest in the lands of which she died seized, subject to the payment of her debts, after the renunciation of her will and after the filing of his election. Secs. 319, 324, 328, 329, 330, R. S. 1929; O'Brien v. Sedalia Trust Co., 5 S.W.2d 74; Thomas v. McGhee, 8 S.W.2d 71. (2) Respondent by his signed statement disavowed any interest existing at that time, in the real estate. (3) The signed statement was insufficient as a basis of estoppel. "To give rise to an estoppel to assert an after-acquired title, there must be a deed purporting to convey an estate and the conveyance must have been the act of the person asserting title." 21 C. J. 1080. 21 C. J. 1081; Staeller v. Silberberg, 220 Mo. 267. A quitclaim deed will not estop the grantor from setting up a title subsequently acquired by him. East v. Davis, 204 S.W. (Mo. Sup.) 402; Gibson v. Chouteau, 39 Mo. 536; Bogy v. Shoab, 13 Mo. 365; 21 C. J. 1082. (4) "A title subsequently acquired from the grantee . . . will not inure to the benefit of him or them." 21 C. J. 1085, par. 62. (5) The estoppel, if estoppel at all, was an estoppel of record and oral evidence was incompetent to change or vary its terms. (6) No consideration having been shown, the agreement on the part of respondent was unilateral. (7) Estoppel by a misrepresentation can only be as to some material fact and not as to some future intention. 21 C. J. 1119, 1114.
Sturgis, C. Ferguson and Hyde, CC., concur.
The pleadings in this case make what the trial court denominated a "dead out suit for partition." The land sought to be partitioned is an improved residence lot in the city of Kirksville. This property belonged to plaintiff's wife, Drusilla E. Strock, in her lifetime and she died seized of the same not long before this suit was instituted. Plaintiff claims a half interest in this property by reason of his being the surviving widower of Drusilla E Strock, who died seized of the same without children or other descendants. It is not material whether plaintiff claims a half interest in this property of his deceased wife under Section 324, Revised Statutes 1929, or under Section 319, abolishing curtesy and giving the widower the same share in the real estate of his deceased wife that is provided by law for the widow in the real estate of her deceased husband, to-wit, one-half of the real and personal estate belonging to the wife (husband) at the time of her death, absolutely, subject to the payment of the wife's indebtedness, as provided in Section 325. Revised Statutes 1929. [See O'Brien v. Sedalia Trust Co., 319 Mo. 1001, 5 S.W.2d 74.] The deceased wife left a will, duly probated, making certain specific bequests and giving the rest of her property, including that in controversy, to her living brothers and sisters, the defendants herein. They claim the whole of the property in dispute, a one-sixth each, under this will and ask partition on that basis. The court found for plaintiff, awarding him one-half and each defendant a one-twelfth. The defendants have appealed. The will of the deceased wife specifically gave the husband nothing and whether he was put to an election or not, he did in fact file a renunciation of the will and an election to take under the law and not under the will.
The defense which defendants make to allotting a one-half of this property to plaintiff as prayed is that plaintiff has relinquished such right and is estopped to claim under the statute giving the widower one-half of his deceased wife's real and personal property on her death without any children or other descendants in being capable of inheriting. The facts shown in support of this defense are that after their marriage, the wife of plaintiff, with her own money, purchased the lot in question and built a house thereon for a home, and that she and her husband lived therein for a number of years and were so living at her death. When the deceased wife purchased this lot she took a warranty deed in common form conveying the same to her and at the time there was inserted in said deed in the space following the description of the lot and preceding the habendum and warranty clauses, the following:
This is the only mention of plaintiff's name in the deed and evidently was written at this place in the deed for mere convenience because of there being a sufficient blank space there. It has the same date and date of acknowledgment as the deed.
The defendants state their defense in their answer in this wise:
"Defendants aver and charge the facts to be that prior to the purchase by his said wife as aforesaid of said real estate, it was mutually agreed and understood by plaintiff and his said wife, that if the said Drusilla E. Strock would so purchase said property with her own private means and erect a dwelling thereon as aforesaid, thus providing plaintiff and his said wife a home in which they could live and prevent and relieve plaintiff from the obligation of paying rent on the properties in which they had previously lived as he had been doing and as it was his duty to do under the law, as the husband of the said Drusilla E. Strock, that he, plaintiff, would waive and relinquish all his marital rights and interest in and to said property of said Drusilla E. Strock, claim no right nor interest whatever in the same and not allow anyone claiming under him to so claim.
'These defendants charge and are ready to verify, that in accordance with such understanding and in pursuance thereof, and believing and relying on plaintiff's agreement so to do, and not otherwise, she did so purchase said real estate and did pay for the erection of said dwelling and other improvements thereon all out of her own money and means, and that they did so occupy the said property thereafter as aforesaid.
"Defendants aver and charge that by reason of plaintiff's said declarations, acts and conduct, causing his said wife to so purchase said real estate and erect the improvements thereon thus providing a home for them, all out of her own and exclusive and separate means, and whether there was such an agreement or not, then plaintiff is now and forever barred, precluded and estopped from claiming any right, title or interest whatever in said real...
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