Harrison v. McReynolds

Decision Date02 July 1904
Citation82 S.W. 120,183 Mo. 533
PartiesHARRISON, Appellant, v. McREYNOLDS et al
CourtMissouri Supreme Court

Appeal from Jasper Circuit Court. -- Hon. Jos. D. Perkins, Judge.

Reversed and remanded.

H. T Harrison pro se.

Estoppel should have been pleaded in the answer, and as it was not and there was no proof of an estoppel the court should have excluded the evidence offered by defendants under the answer. Blodgett v. Perry, 97 Mo. 272. John Grubb, witness for defendant, states that there was no consultation with plaintiff's grantor about the deeds, they simply told her what they had done and came over to give her the personal property. There was no estoppel. Gentry v. Gentry, 122 Mo. 220; Wurmser v. Frederick, 62 Mo.App. 638; Bramell v. Adams, 146 Mo. 82; Bartlett v Kander, 97 Mo. 361. Estoppel is not pleaded which is absolutely necessary when relied upon in pais as a defense. Throckmorton v. Pence, 121 Mo. 59.

McReynolds & Halliburton for respondents.

(1) Joel Grubb and Rhoda C. Grubb were tenants in common of the land in controversy. McReynolds v. Grubb, 150 Mo 352. (2) A married woman after becoming discovert may affirm an executory contract made during coverture, and it will be mutual and binding, and she may affirm and ratify a deed. Price v. Hart, 25 Mo. 171; Boatman v. Curry, 25 Mo. 433; Walker v. Owen, 79 Mo. 571. (3) Rhoda C. Grubb having received from her husband the agreed consideration for her interest in this land; and having ratified the deed as intended to have been made, and settling with the heirs, and having stood by and seen America McReynolds and Sarah A. Montague buy and pay V. H. Grubb for his interest therein, take possession of same, divide it, and make lasting and valuable improvements thereon, and pay the taxes for years, would be estopped from now claiming this land or any part of it, and plaintiff, having taken his title with full knowledge of all the facts, is estopped from claiming it. Ins. Co. v. Rosenheim, 56 Mo.App. 36; Highley v. Barron, 49 Mo. 103; Sweeney v. Mallory, 62 Mo. 485; Austin v. Loring, 63 Mo. 19; Green v. Railroad, 82 Mo. 653; St. Louis v. Davison, 102 Mo. 149; Combs v. Sullivan Co., 105 Mo. 230; Clyburn v. McLaughlin, 106 Mo. 521; McReynolds v. Grubb, 150 Mo. 352. (4) Estoppel is fully and properly pleaded, containing same facts as in petition of McReynolds v. Grubb, 150 Mo. 352, which the court held would be good as an estoppel though not sufficient to support a decree in equity.

OPINION

GANTT, P. J.

This is an action of ejectment for the south half of the northwest quarter of the southeast quarter of section 17, township 28, range 31, in Jasper county, Missouri.

The common source of title was admitted to be in Joel Grubb and Mrs. Rhoda C. Grubb, who were, in their lifetime, husband and wife. Mathew Payne, the father of Mrs. Rhoda C. Grubb, died seized of this and other lands, and after his death a partition was had. It was alleged in the petition for partition that Joel Grubb had by purchase acquired the interest of certain heirs in his own right, and that Mrs. Grubb had inherited a part of said land as a daughter and heir at law of Mathew Payne, deceased. The partition was in kind and the share of Joel Grubb and Mrs. Rhoda Grubb, his wife, was found by the court to be "three and thirteen-fifteenths of seven and three-fifths of said land," quantity and quality considered, and their said shares were ordered to be set off to them by metes and bounds.

The commissioners set off to Joel Grubb and Rhoda C. Grubb the west half of the southeast quarter of section 17, in township 27, range 31, in Jasper county, Missouri. Joel Grubb died in October, 1889. Mrs. McReynolds is one of the children and heirs at law of Joel Grubb. Joel Grubb was married twice, if not three times. His first wife was Cyrena Payne, the mother of five of his children, to-wit, America McReynolds, Sarah A. Montague, John Grubb, Jacob Grubb and Virgil Houston Grubb. Rhoda C. Grubb bore him one child, Victoria Grubb, who also survived him and afterwards intermarried with Mr. Coulter.

From the statement of counsel it appears that Joel Grubb had a second wife who was the mother of two children, but that for some reason Joel Grubb disowned them.

In 1877 Joel Grubb was the owner in fee of the northwest quarter of the southwest quarter of section 10, township 27, range 31, except two and one-half acres thereof. It seems this was his homestead. He also owned twenty-six and one-half acres, a part of the northwest quarter of the southeast quarter of section 9, township 27, range 31. The plaintiff in this suit bases his right to recover on purchases and deeds from Mrs. Rhoda C. Grubb and her daughter, Mrs. Victoria Coulter, to the northwest quarter of the southeast quarter of section 17, township 27, range 31.

The deed from Rhoda C. Grubb was a quitclaim deed and dated May 28, 1896, consideration $ 500, and recorded in book 145, p. 246. Mrs. Coulter's deed was executed by her and her husband to plaintiff August 16, 1899, for the consideration of $ 80, and is recorded in book 145, p. 377. It was admitted that defendants McReynolds were in the possession of the south half of the northwest quarter of the southeast quarter of section 17, township 28, range 31, the land described in the petition.

The answer is a general denial, but admits defendants have been in possession of the land since the twenty-first day of October, 1899. The answer then at length and in detail proceeds to state all the real estate owned by Joel Grubb in 1877 in his own right, and his ownership with his wife of the northwest quarter of the southeast quarter of section 17, township 27, range 31, except three-fourths of an acre in the southwest corner; said Joel owning an undivided three-fourths thereof and his wife Rhoda owning one undivided one-fourth. The previous marriage of Joel Grubb and the fact that in 1877 there were living five children by his first wife as already stated. The substance of the remainder of the answer will appear in the course of the opinion.

To this answer plaintiff filed a reply denying all the new matter alleged therein.

This controversy has been in this court on a former occasion in the cause of McReynolds v. Grubb, 150 Mo. 352, 51 S.W. 822. That was a suit in equity to correct the mistake made in the description of the land in suit in the deed from Joel Grubb and Rhoda C. Grubb to Jacob Grubb of date of March 9, 1877, whereby the northwest quarter of the southeast quarter of section 17 was described as the northeast quarter of the southeast quarter of said section 17, and it was then held that as the interest of the said Rhoda C. Grubb in said northwest quarter of the southeast quarter was inherited by her from her father, Mathew Payne, after her marriage to Joel C. Grubb and prior to the adoption of section 6864, Revised Statutes 1889, it was not her separate estate, and could only have been conveyed by her and her husband jointly, and then only by deed signed and acknowledged by them as provided by section 14, p. 935, Wagner's Statutes 1872, and as said deed did not describe the land intended to be conveyed as to Mrs. Grubb it conveyed neither the legal nor the equitable title, and a court of equity could not correct said deed. Thereupon the plaintiff who had acquired the interest of Mrs. Grubb and her daughter, Victoria Coulter, brought this action in ejectment.

I. The first proposition advanced by plaintiff on this appeal is that the decree in partition of the estate in this land of Mathew Payne, deceased, Joel Grubb and Rhoda C. Grubb became tenants by the entireties of the northwest quarter of the southeast quarter of section 17, township 27, range 31, except three-fourths of an acre in the southwest corner thereof. This is a misapprehension of the law and a misapplication of the doctrine of tenancy by the entireties.

Unquestionably at common law a conveyance to husband and wife in fee vests the estate in them as one person, the whole of which remains to the survivor of them, and the statutes of this State have not altered or modified the common law in this respect, but have reaffirmed it. [Sec. 4600, R. S. 1899; Doe on demise Freestone v. Parratt, 5 Term Repts. 655; Gibson v. Zimmerman, 12 Mo. 385; Garner v. Jones, 52 Mo. 68; Edmondson v. Moberly, 98 Mo. 523, 11 S.W. 990; Hume v. Hopkins, 140 Mo. 65, 41 S.W. 784; Russell v. Russell, 122 Mo. 235, 26 S.W. 677.]

In all such cases the deed or will creates the title in the husband and wife, but in partition even if made by deeds inter partes no additional estate is conveyed to the partitioners. The decree of partition in the one case, or the voluntary deeds in partition in the other, only have the effect of assigning to each coparcener in severalty and by metes and bounds that which was already his or hers. Our statute expressly permits any number of shares to be set off together in one parcel. [Sec. 4387, R. S. 1899.] This is settled law in this State. It follows that Joel Grubb and his wife Rhoda were tenants in common and not by the entirety in said forty acres. [Whitsett v. Wamack, 159 Mo. 14, 59 S.W. 961; Palmer v. Alexander, 162 Mo. 127, 62 S.W. 691; Snyder v. Elliott, 171 Mo. 362, 71 S.W. 826; Propes v. Propes, 171 Mo. 407, 71 S.W. 685.]

It is then obvious that in no event could plaintiff recover more than the three-elevenths which Mrs. Rhoda C. Grubb inherited from her father, Mathew Payne, by virtue of his deed from her. Her dower rights in the eight-elevenths (or three-fourths as defendants say) of which her husband was seized, not having been asserted during the ten years after her husband's death, is barred by the statute of limitations.

II. Was Mrs. Grubb estopped to claim her three-elevenths or one-fourth of said...

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