Alexander v. Alexander

• Decision Date: 14 June 1899
• Citation: 52 S.W. 256,150 Mo. 579
• Parties: ALEXANDER et al. v. ALEXANDER.
• Court: Missouri Supreme Court

52 S.W. 256

150 Mo. 579

ALEXANDER et al. v. ALEXANDER.

Supreme Court of Missouri, Division No. 1.

June 14, 1899.

WILLS — PROMISE TO MAKE — SPECIFIC PERFORMANCE.

Agreement of J., an invalid bachelor, to leave his property on his death to I., his only brother, part of it having been inherited from their mother, and I. having deeded to J. his interest therein, and I. having contributed to the purchase of the rest of it, and having agreed that J. should have and enjoy it all during his life in consideration of his leaving it to I. on his death, such agreement being shown by the letters of J. to I. and his declarations to others, will be enforced; J. having died without a will, and half-brothers by their father, with whom J. and I. had had nothing to do (their mother having been divorced from their father), having claimed an interest therein by inheritance.

Appeal from circuit court, Saline county; Richard Field, Judge.

Ejectment by A. V. Alexander and others against Isham E. Alexander. Judgment for plaintiffs. Defendant appeals. Reversed.

W. M. Williams, for appellant. J. F. Rutherford and Wm. S. Shirk, for respondents.

BRACE, P. J.

This is an action in ejectment to recover 139 acres of land in Cooper county, described in the petition, which is in common form. The answer of the defendant, after a general denial, sets up the following defense to plaintiffs' cause of action: "And for another answer and defense to plaintiffs' petition this defendant says that the plaintiffs' claim to the land described is by inheritance from one John H. Alexander, and not otherwise; that this defendant is the brother of the said John H. Alexander, deceased, and is the only brother or sister of said deceased of the full blood that is now surviving, or that was living at the death of the said John H. Alexander, and that said deceased was never married, and that his father and mother are both dead; and that plaintiffs claim to be his half brothers or sisters, or descendants of same, and assert title to said land by inheritance, as aforesaid, from said John H. Alexander, and in no other manner. Defendant further states that the father and mother of the said deceased and this defendant separated, and ceased to live together as man and wife, in about the year 1844, and that by an agreement between them the custody and control of the defendant and the said John H. Alexander, deceased, was given to their mother, Edith Alexander, and said boys, together with two daughters of the same marriage, were brought to Cooper county, Missouri; and the said Edith Alexander purchased, partly upon credit, a portion of the land described in the petition, and moved thereon with her four children, to wit, the said John H. Alexander, the defendant, and their two sisters, and that they continued to reside thereon for many years; that the remainder of said land described in the petition was purchased by the deceased, John H. Alexander; that afterwards it was agreed by and between the said John H. Alexander and this defendant, with the assent and concurrence of their said mother, that the said John H. Alexander should remain with and care for their mother and sisters, and that this defendant should go to the state of California and work there, and that he should send home to his said brother and mother all of his earnings over and above the amount necessary for his support, and that the same should be used in paying for the land purchased by his mother, and a part of which is described in the petition; that afterwards it was further contracted and agreed by and between the said John H. Alexander and this defendant that the said John H. Alexander would buy other land, in his own name, in addition to that to which the title was then in their mother, and that this defendant would from time to time send to said John H. Alexander money to assist him in paying for the land so purchased, and that the lands described in the petition were purchased and held by the said John H. Alexander under said contract and agreement, and were paid for in part by money furnished to them by this defendant; that the total amount of money sent by this defendant to be invested in, and which was invested in, the lands described in the petition, amounted to the sum of $896; that the said John H. Alexander offered to convey to this defendant an undivided half interest in said lands, in consideration of the money belonging to the defendant which had been used in paying therefor; that the defendant declined said offer; that the sisters born of the marriage between the father and mother of said John H. Alexander were then dead, and that only the said John H. Alexander and this defendant remained alive; that said John H. Alexander was single and unmarried; that neither the said deceased nor this defendant had ever had any knowledge of or intercourse with any of their half brothers and sisters after the separation between their father and mother as aforesaid; that in view of these facts, and for and in consideration of the said sum of $896 advanced by this defendant to the said John H. Alexander to be used in paying for said lands as aforesaid, and in consideration of the promise then and there made by this defendant to the said John H. Alexander not to require him, the said John H. Alexander, to repay the defendant the said sum of $896 advanced as aforesaid, it was then and there, to wit, in May, 1876, contracted and agreed by and between the said John H. Alexander and this defendant that all the property of which the said John H. Alexander should die seised should upon his death pass to and vest in this defendant, and that said deceased would execute necessary wills and conveyances to carry into effect said contract; that in consideration of said contract upon the part of the said John H. Alexander, and relying thereon, this defendant permitted the said John H. Alexander to retain the title of the whole of said land, and took no step whatever to collect from him said $896, or any part thereof; that the said John H. Alexander died in the county of Cooper in the year of 1894, without having made a will, and without having conveyed the lands described in the petition to the defendant, as he was in duty bound to do under his said contract; that the said John H. Alexander failed to provide by will that said property should belong to this defendant, as he had promised and agreed to do in the contract aforesaid, because of his belief that this defendant would be his sole and only heir, and for no other reason. Wherefore the defendant prays that said contract be specifically enforced, and that the legal and equitable title to the lands described in the petition be vested in this defendant, and for all proper relief." Issue was joined upon the new matter set up in the answer by reply, which also contained a plea of the statute of frauds. The case was taken by change of venue from the Cooper to the Saline county circuit court, where it was tried by the court without a jury, the issues found for the plaintiffs, and judgment rendered in their favor for the undivided 20/27 of the premises, and the defendant appeals.

John H. Alexander, deceased, is the common source of title. He died in 1894, seised in fee of the premises under the following chain of title: Deed dated January 23, 1846, from James Thomas and wife to Edith P. Alexander for 13 acres of the land in controversy, in consideration of the sum of $60 paid by her to the grantors. Deed from William Cartner and wife to Edith P. Alexander for 40 acres of said land, dated October 7, 1850; consideration, $190. Deed from John Allison and wife to John H. Alexander for 80 acres of said land, dated June 8, 1860; consideration, $1,000. Deed from James H. Rennison and wife to John H. Alexander for 5½ acres, acknowledged January 2, 1882; consideration, $165. On the 30th of October, 1887, Edith P. Alexander died, leaving surviving her, as her only heirs at law, her two sons, the said John H. Alexander and the defendant. Deed from Isham E. Alexander and wife to John H. Alexander, conveying all of defendant's interest in the 53 acres of land belonging to Edith P. Alexander, and his interest in the personal property of his mother's estate, dated May 25, 1888; consideration, $802.50. The defendant is his brother of the whole blood. The plaintiffs are the half brothers and sisters, and the descendants of other deceased half brothers and sisters, of the said John H. Alexander, deceased; and the judgment in their favor on the legal title is correct, unless the defendant, the only brother of the whole blood of said deceased in possession of the premises at the time suit was brought, has made good the claim set up in his answer by competent and sufficient evidence, and this is the only question in the case.

It appears from the evidence that prior to the 9th day of December, 1844, Reuben and Edith Alexander were husband and wife, living in Boone county, Mo., and having three children born of the marriage, to wit, the said John H. Alexander, deceased, the defendant, Isham E. Alexander, and a daughter named Sarah; that on that day they were legally divorced; that a short time thereafter another daughter was born, named Susie; that at some time between the 9th of December, 1844, and the 23d of January, 1846, she, with her two little daughters, removed from Boone to Cooper county, and purchased the 13 acres of timber land before mentioned, for which she received the deed of date January 23, 1846, about which time, also, she effected a settlement with her late husband by which she obtained the custody of her two sons, and received from him, with them, the sum of $500, and, by the assistance of the neighbors, succeeded in getting a clearing made and a log cabin erected on her little tract of land. Thus it was that in the beginning of the year 1846 this brave woman commenced her new life in this humble home in the woods, with her four little children, one of whom,...