Bealey v. Blake

• Decision Date: 05 February 1900
• Citation: 55 S.W. 288,153 Mo. 657
• Parties: BEALEY et al. v. BLAKE et al., Appellants
• Court: Missouri Supreme Court

55 S.W. 288

153 Mo. 657

BEALEY et al. v. BLAKE et al., Appellants

Supreme Court of Missouri, First Division

February 5, 1900

Appeal from Buchanan Circuit Court. -- Hon. A. M. Woodson, Judge.

Reversed and remanded.

J. M Stewart, Harry J. Nelson and C. A. Mosman for appellants.

(1) The alleged contract in release of dower is not sustained by any direct evidence. No agreement or writing of any kind, signed by appellant to that effect is shown. No witness swears to any such oral agreement on her part. All that appears is these two conveyances, which are in the form commonly used in real estate transactions, and contain not the slightest suggestion that the appellant herein purposed or intended by the acceptance of said deed, to relinquish her dower in other lands not mentioned or described. Indeed, it is not even shown that she was present when these conveyances were made. (2) No purpose or intention on the part of her husband that the property thus conveyed was to be in lieu of dower in his other land is shown. On the contrary the plaintiffs themselves prove by the decree introduced in evidence by them that these conveyances were not the acts and deeds of said Norton Blake; that he was too weak minded and demented to be capable of forming such a purpose or intention; and that he was then subject to a strong and controlling influence of his son-in-law, William Bealey, who was his trusted agent and confidential business adviser. Such evidence is a sufficient answer to the alleged contract. 1 Greenl. on Evid., sec. 33; Hall v. Smith, 103 Mo. 295; Pemberton v Pemberton, 29 Mo. 408; Martien v. Norris, 91 Mo. 455; Bryant v. McCune, 49 Mo. 547; Perry v Perryman, 19 Mo. 469; Farris v. Coleman, 103 Mo. 360; Dudley v. Davenport, 85 Mo. 462. (3) We contend that Mrs. Blake is entitled to dower in these lands; there is nothing in the record which tends to show that Norton Blake left the place with an intention to abandon his homestead. He was driven from it by fear of his life. The record shows many acts of violence on the part of the tenants towards him; that an altercation occurred nearly every day; that they tried to burn his granary, and that Robert Young was afraid the old man would be killed and got him to come to his house to live until the trouble was over. Blake left his things on the place and went to Young's within a mile of his homestead to live temporarily. Under such circumstances no inference of an intention to abandon the homestead can be indulged. Leak v. King, 85 Mo. 413; Potts v. Davenport, 79 Ill. 455; Harberson v. Jenninson, 38 S.W. 232; Farmer v. Hale, 37 S.W. 164; Wetzs v. Board, 12 Oh. St. 431; Brown v. Brown, 68 Mo. 388; Whitehead v. Tap, 69 Mo. 415; Dufey v. Williams, 99 Mo. 135; Walters v. The People, 21 Ill. 178; Rohrer v. Brockhage, 13 Mo.App. 402; Shores v. Shores, 34 Mo.App. 208; Harberson v. Jenninson, 38 S.W. 232; Farmer v. Hale, 37 S.W. 164; Locke v. Rowell, 47 N.H. 50. (4) The wife is compelled to follow her husband and is in as much need of protection in the preservation of her homestead as are the children, and the same law should apply to both. Walters v. The People, 21 Ill. 178; Rohrer v. Brockhage, 13 Mo.App. 404; s. c., 86 Mo. 547; Hofschmidt v. Gross, 112 Mo. 658.

Ben. J. Woodson, Thos. J. Porter, Frank Hagerman and Willard P. Hall for respondents.

(1) The decree had the double effect (a) of divesting Bealey of the title to the land, and (b) of vesting it in the three designated children of Norton Blake. This as effectually as if the decree had compelled a conveyance by Bealey to them. In a certain sense this decree was binding upon no one but the parties to it, but in another sense it is binding upon all the world. Had Bealey voluntarily, or under the compulsion of a decree, conveyed the land to said three children, no one but the parties would have been absolutely concluded thereby, but on the other hand all the world would have been concluded until such conveyance should have been set aside and canceled in a proper proceeding instituted for that purpose. And so it is with the present decree. It vested all of Bealey's title in said children. That title was good against everybody except them, for no one else had attacked it. That title will continue good, and will continue in the children so long as the decree continues in force, and it will continue in force until set aside and canceled. (2) The widow can have no interest in the land until in an action by herself she shall have set aside the conveyances to Gilbert Blake and by him as aforesaid. Those conveyances are still subsisting as to her. So long as they stand, she has no title or interest whatever. (3) Can she keep the forty acres and also get a dower in the other land? If there was fraud, she knew it and was a party to it, and equity will not relieve her. If the husband was of unsound mind she knew that also, and equity will not help her on that score so long as she holds onto the forty acres. And besides all that, she knew well enough what she was doing. She released her dower. She was not defrauded. She can not now get it back. There is no conceivable ground on which a court of equity will give her back her dower. It is no answer to all this for counsel to say that when a deed of a man joined in by his wife is set aside on account of his fraud she will take her dower as if the conveyance had not been made. (a) Because the deed here has never been set aside except in the suit which resulted in the decree in favor of the three children, and the widow is not claiming under that decree. (b) Because here the fraud was hers, and she profited by it to the extent of forty acres which she still retains.

OPINION

MARSHALL, J.

This is an action for the partition of one hundred and sixty-six and one-half 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 four thousand dollars, 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 forty-six acres in amount, to Mary Blake and that in consideration thereof, and of the further conveyances of Matthias Knaebel 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 Knaebel, 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 east half of the southeast quarter 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...