Alward v. Boatwright

• Decision Date: 12 March 1917
• Docket Number: No. 18266.,18266.
• Citation: 193 S.W. 568
• Parties: ALWARD v. BOATWRIGHT.
• Court: Missouri Supreme Court

193 S.W. 568

ALWARD v. BOATWRIGHT.

No. 18266.

Supreme Court of Missouri, Division No. 1.

March 12, 1917.

Error to Circuit Court, Reynolds County; E. M. Dearing, Judge.

Suit by Elizabeth J. Alward against L. J. Boatwright to set aside and cancel a warranty deed executed by plaintiff to defendant. Decree for plaintiff, and defendant brings error. Reversed and remanded, with directions.

On September 15, 1911, plaintiff brought suit in the circuit court of Reynolds county, Mo., against defendant to set aside and cancel a warranty deed which she executed and delivered to him on April 25, 1911. The petition, without caption and signature, reads as follows:

"Plaintiff states that on the 25th day of April, 1911, she was the owner of the east half of the northwest quarter of section 25 in township 28, range 2 east, in Reynolds county, Mo., and that on said above-mentioned date this plaintiff entered into the following contract with the defendant as follows: `Said party of the second part is to care for and wait on while sick, get all fire wood, go to mill, look after stock, and all other necessary chores about the premises of said party of the first part all during her lifetime.' `Also said party of the first part is to have one-third part of all crops grown on said above land during her lifetime; also said party of the second part, nor his wife, shall not abuse, curse, strike, or mistreat said party of the first part in any manner. Said party of the second part is to pay all taxes which accrue on said above-described lands.' Said above contract is stated in the face of a general warranty deed made by the said plaintiff to the defendant on the 5th day of April, 1911, and acknowledged and delivered on said above date, at which time the defendant took possession of the above-described lands and occupied same during the crop season of said year 1911.

"Plaintiff further states that the defendant wholly failed and refused to carry out his said contract as set out in his said deed, and neglected and refused to get the wood for the plaintiff, and failed and refused to do the chores, and to keep up the fences, and to protect the crops grown upon the lands from the ravages of stock of all kinds, and on the ____ day of July, 1911, wholly abandoned the premises above described, leaving the houses, fences, and crops exposed and without care, and has made no provisions for the care and keeping of this plaintiff, in total violation of the express consideration of said deed.

"Wherefore, the premises considered, plaintiff prays the court to cancel, set aside and for naught hold the deed so made by plaintiff and delivered by the defendant and the contract therein contained, and that she may have her costs in this behalf expended."

Defendant, in his answer, admits the execution of the deed and contract as stated in plaintiff's petition, but denies every other allegation therein contained. He alleges in the answer that from the date of said conveyance and contract, until the ____ day of August, 1911, he complied with his part of said contract; was ready and willing to continue said compliance, but was prevented from so doing by the acts and threats of plaintiff; that during said period he laid out and expended money and labor on said premises to the value of $400; that on the ____ day of August, 1911, plaintiff ordered defendant to vacate and move from said premises, conveyed to him as aforesaid, and informed him that she had no further use for him; that she did not want him to continue and fulfill his contract with her; that if he did not move from said premises, she would poison him and his family, and would kill his wife and child. He concludes the answer with a prayer for judgment, for his costs and for an order enjoining plaintiff from interfering and preventing him from performing his part of said contract and improving said premises.

The reply is a general denial of the new matter pleaded in the answer.

The plaintiff introduced testimony tending to sustain the allegations of her petition. The defendant likewise introduced testimony tending to sustain the averments in his answer. The court found from the evidence that defendant failed and refused to comply with the contract aforesaid, and that by reason thereof said warranty deed was without consideration and void. It was accordingly adjudged by the court that the deed be set aside and for naught held, and that plaintiff was entitled to said land, etc. Defendant filed his motion for a new trial in due time, which was overruled and the cause duly appealed by him to this court.

C. M. Buford, of Ellington, R. I. January, of Centerville, John H. Chitwood, of Ellington, W. A. Welker, of Poplar Bluff, and Arthur T. Brewster, of Ironton, for plaintiff in error. O. L. Munger, of Piedmont, for defendant in error.

RAILEY, C. (after stating the facts as above).

I. Plaintiff's petition is challenged upon the ground that it fails to state facts sufficient to constitute a cause of action against defendant. Counsel for respondent seems to be of the impression that as no question was raised in the court below as to the sufficiency of the petition, we should treat the latter as stating a cause of action. This is a misapprehension of the law. The question as to whether a petition states facts sufficient to constitute a cause of action may be raised at any stage of the proceedings, and even after the case has reached the appellate court. This has been the settled law of this state for many years. Section...