Lewis v. Rhodes

• Decision Date: 14 June 1899
• Citation: 52 S.W. 11,150 Mo. 498
• Parties: LEWIS v. RHODES.
• Court: Missouri Supreme Court

52 S.W. 11

150 Mo. 498

LEWIS v. RHODES.

Supreme Court of Missouri, Division No. 1.

June 14, 1899.

EJECTMENT — EQUITABLE DEFENSES — APPEALS IN EQUITY — JURY.

1. Where an answer in ejectment admits the legal cause of action, and sets up matters of an equitable character in avoidance, the case is converted into a suit in equity, triable by the court.

2. The verdict of a jury in a chancery cause being only advisory, the court on appeal must find the facts from the evidence, as if no jury had been called.

Appeal from circuit court, Scotland county; E. R. McKee, Judge.

Ejectment by John S. Lewis against Robert W. Rhodes. From a judgment for defendant, plaintiff appeals. Reversed.

This is an action of ejectment for 80 acres of land in Scotland county. The answer of defendant admits that he is in possession of the land, and that plaintiff holds the legal title by inheritance from his mother, who was the wife of defendant. It then pleads as an equitable defense that in 1866 or 1867 defendant purchased a certain other 80 acres, and paid for the same with his own means, but that by inadvertence or mistake the deeds were made to his then wife, the plaintiff's mother, and that afterwards she, desiring to deed the land last mentioned to the plaintiff, her son by a former marriage, agreed with defendant that, if he would sign the deed so to be made to her son, she "would deed the lands described in plaintiff's petition to this defendant, or fix it so he would have the ownership of the same"; that, relying on that agreement, defendant on the 24th of February, 1893, joined his wife in a deed of the 80 acres above mentioned to the plaintiff, and immediately took possession of the land now sued for, built a barn on it that cost $100, and made other improvements, and lived on it with his wife until her death, in November, 1896. The reply is a general denial. Upon the trial the court, over the objection of the plaintiff, submitted the issues to a jury, whose verdict was for the defendant, and judgment accordingly. After motion for new trial, etc., the cause is here on plaintiff's appeal.

R. D. Cramer and Edward Higbee, for appellant. Smoot, Mudd & Wagner, for respondent.

VALLIANT, J. (after stating the facts).

1. The answer, admitting the facts constituting the plaintiff's legal cause of action, and setting up other facts of an equitable character in avoidance, converted the whole case into a suit in equity, triable by the court as in chancery. Hodges v. Black, 8 Mo. App. 389, affirmed 76 Mo. 537; Allen v. Logan, 96 Mo. 591, 10 S. W. 149; McCollum v. Boughton, 132 Mo. 601, 30 S. W. 1028, 33 S. W. 476, and 34 S. W. 480. A chancellor may, if he sees fit to do so, submit issues of fact to a jury, but in such event the finding of the jury is only advisory. When the cause comes up on appeal for review, this court must find the facts from the evidence, as it would where the chancellor tries the case without the assistance of a jury.

2. There are several propositions assigned as error, relating to instructions given and refused; but it will be unnecessary to consider them, because the evidence does not sustain the material allegations of the answer. Perhaps it would not be going too far to say that the evidence of defendant does not even tend to prove the parol contract set up in his answer. Certainly the decided weight of the whole evidence is against him. The essential averments in the answer are that defendant, with his own money, purchased the 80 acres which in February, 1893, he and his then wife deeded to the plaintiff, the title to which by mistake had been taken in her name, and that, in consideration of his joining his wife in that deed to her son, she agreed to deed him the land in suit, which she then owned, and which he thereupon took possession of and improved. The most that can be claimed for defenda...