Bealey v. Blake

Citation153 Mo. 657,55 S.W. 288
PartiesBEALEY et al. v. BLAKE et al.
Decision Date05 February 1900
CourtUnited States State Supreme Court of Missouri

3. One B. and his wife occupied the land as a homestead up to April, 1890, when they left it because of troubles with their tenants, which, however, were settled in the following July. For a while they lived with the wife's daughter, but, B.'s health being impaired by old age and troubles with his tenants, he visited some relatives and friends out of the state, but returned to vote at the November, 1890, election, after which he again went to visit out of the state. He always expressed an intention to return, until February 23, 1891, when he wrote from Louisiana to his son-in-law in Kansas that he would never spend another day "among the Christian thieves and religious robbers of Missouri." Held, that the language employed in his letter showed that he was in too demented and weak-minded a condition to form a purpose to abandon his homestead, or to appreciate the character of the act of changing his domicile; hence there was no abandonment of the homestead.

Appeal from circuit court, Buchanan county; A. M. Woodson, Judge.

Action by Gertrude Bealey and others against J. J. Blake and others. From a decree denying defendant Mary Blake's homestead and dower rights to the property in question, said defendant appeals. Reversed.

This is an action for the partition of 166½ acres of land in Buchanan county. Originally the parties to the suit were only Gertrude Bealey and her husband, the plaintiffs, and J. J. Blake and Lucy E. Snyder, the defendants, who were the children of A. N. Blake, usually called Norton Blake. Afterwards Mary Blake, the widow of Norton Blake, and Samuel H. Smith, the public administrator in charge of the estate of Norton Blake, were, on their motions, made parties defendant. The plaintiffs asked partition by giving to each of the children an equal one-third of the property. The defendants J. J. Blake and Lucy E. Snyder also claimed that the three children were entitled to one-third each, but they asserted that the plaintiffs had collected the rents since January, 1890, amounting to some $4,000, had appropriated them to their own use, and had excluded said defendants from the enjoyment of the premises, and they therefore asked that two-thirds of said rents, less the taxes paid by the plaintiffs, be charged against the plaintiffs' interest. The answer of Smith, the administrator, averred that the administration upon the estate had not been closed; that there was no personal property belonging to the estate, and no other real estate; that there were judgments and claims allowed against the estate; and that this real estate, or a part of it, would necessarily have to be sold to pay the same. The answer of Mary Blake alleged that the land sought to be partitioned was the homestead of Norton Blake at the time of his death; that she is the widow of Norton Blake, and has never remarried, and claimed a homestead and dower in the land. To this answer the plaintiffs replied, denying generally the allegations of the answer, and pleading specially that on the 16th of April, 1890, Mary Blake joined in a deed with her husband conveying the land to Gilbert Blake, whereby she expressly released all claims to dower in the land; and further averring that on the 4th of October, 1890, "the transaction between Norton Blake and Gilbert Blake which had resulted in the execution of said deed was so settled and arranged between said parties that Gilbert Blake agreed to convey all of said lands to such person or persons as Norton Blake might designate; that then and there it was agreed between Norton Blake and Mary Blake, his then wife, that Gilbert Blake should convey a portion of said lands included in the deed from Norton Blake to Gilbert Blake, about 46 acres in amount, to Mary Blake, and that in consideration thereof, and of the further conveyances of Matthias Knoebel and his wife of certain other lands to Mary Blake on the same day, which had been conveyed by Norton Blake and Mary Blake to said Knoebel, for the purpose of reconveyance to Mary Blake, said Mary Blake would and did release all right, claim, or interest in or to any of the other lands included in said deed from Norton Blake to Gilbert Blake, and in consideration of the foregoing said Mary Blake did then and there consent to the conveyance by said Gilbert Blake of the remaining lands to William Bealey, which said remaining lands thus conveyed to William Bealey are the subject of this suit."

The trial developed the following state of facts: The plaintiff Gertrude Bealey and the defendants Judson J. Blake and Lucy E. Snyder are the children of Norton Blake by his first marriage. About 1866, Norton Blake married Mary Thompson, the widow of George Thompson, and she had one child by that marriage, now the wife of Robert Young. At the time of his death, George Thompson owned lot 16 in block 9 of South St. Joseph. Mary, at the time of her marriage to Blake, owned the E. ½ of the S. E. ¼ of section 3, township 21, range 36, in Andrew county. Afterwards, in 1868, Norton Blake and Mary, his wife, conveyed this land to one Mooney for an expressed consideration of $5,000. From the time of their marriage, in 1866, until March or April, 1890, Norton Blake, and Mary, his wife, lived upon the premises here sought to be partitioned, and there is no dispute that it was his homestead. He and his wife always lived happily together, and are not shown to have had any disagreements whatever. From the time of his marriage until February, 1890, Blake had managed the lot in St. Joseph, which was so owned by Thompson before his death, and collected the rents therefrom. Blake wanted to make his stepdaughter, Mrs. Young, a present, and he therefore built a house on that lot, for which he paid $1,350, and Mrs. Young's husband paid the balance of the cost. Mrs. Young refused to accept any present or favor from Blake, and declined to take the house. It was thereupon agreed that Mrs. Young and her husband should convey the lot to Norton Blake, and he should convey it to Mary Blake. To carry out this purpose, Mrs. Young and her husband conveyed the lot to Blake by deed dated February 8, 1890. Norton Blake, however, did not carry out the programme at that time. On the 1st of March, 1889, Blake leased his place, consisting of about 200 acres, to Ball and Wattenberger, for a term of 10 years, reserving, however, the privilege of canceling the lease at any time if he should sell the property, and further reserving for his own use two rooms in the mansion house, and such other rooms in another house as should be necessary to store the household goods he wished to leave there, and also necessary room in the smokehouse, the south room in the wood house, "and the dwelling house in the grove, 20 rods northwest of barn, and as much milk as he needs for his family use for butter, etc., and the use of the team known as `Cub' and `Curly,' and the use of such wagon or vehicle as may be necessary, and also the right to build other buildings as he may think best, and all necessary privileges for the comfort of himself and family." Afterwards, on the 31st of August, 1889, Ball and Wattenberger assigned the lease to W. M. and Z. D. Patton. Blake and wife continued to live on the place after the execution of the lease and after its assignment. But there was serious trouble between Blake and the Pattons. They threatened to kill him, and actually assaulted him. He was an old man, over 75 years of age, and he and his wife were terrorized by the Pattons to such an extent that Blake employed persons to stay on the place to protect him and his wife. When these persons tired of the job and left, Blake sent for Mr. Young, and it resulted in Blake and his wife leaving the place in March or April, 1890, and going to Mr. Young's house. On the 16th of April, 1890, Blake and his wife conveyed the land to Gilbert Blake, his nephew, for an expressed consideration of $20,000, but no such consideration was paid, but in fact Gilbert Blake executed to Norton Blake certain promissory notes aggregating $19,500, maturing at intervals of one year, the last falling due nineteen years after date, and secured them by a deed of trust on the land. Some time in July, 1890, the difficulty between the Pattons and Blake was settled, and the lease canceled. Then, on the 23d of July, 1890, Blake leased the land to one Overton for a term ending March 1, 1894. On the 4th of October, 1890, the transaction between Norton Blake and Gilbert Blake was rescinded, the notes given by Gilbert to Norton were surrendered and destroyed, and the deed of trust was released by Norton Blake and his wife, Mary. Thereupon, by direction of Norton Blake, 166 acres of land (the premises here in question, and being a part of the premises conveyed to Gilbert by Norton Blake and wife on April 16, 1890) were conveyed by Gilbert Blake and wife to William Bealey, the husband of Gertrude Bealey, the plaintiff herein. On the same day Gilbert Blake and wife conveyed to Mary Blake, the defendant...

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