Bennett v. Shipley

• Decision Date: 31 October 1884
• Parties: BENNETT, Administrator, v. SHIPLEY et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

82 Mo. 448

BENNETT, Administrator,

v.SHIPLEY et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Harrison Circuit Court.--HON. S. A. RICHARDSON, Judge.

AFFIRMED.

D. S. Alvord for plaintiffs in error.

Plaintiff ought not to recover for the reason that the record shows that plaintiff's intestate had full notice of the Dyer incumbrance on the land Dyer traded to him, and that he depended upon Dyer removing same. Both parties having equal knowledge of the condition of title, there was no fraud. See Kerr on Fraud and Mistake, p. 233. The defendant, Lucinda Shipley, had a right to hold said land under the homestead laws of the State of Missouri.

D. J. Heaston for defendant in error

The deed of trust given by Dyer was an incumbrance on the land, and was properly made a lien on the land Dyer got from Bennett, as for that much purchase money. Prattv. Clark, 57 Mo. 189; O'Neill v. Capelle, 62 Mo. 207; Close v. Graham, 64 Mo. 249; Blackburn v. Tweedie, 60 Mo. 505; Dail v. Moore, 51 Mo. 591; Steward v. Wood, 63 Mo. 255; 2 Story Eq. Jur., (8 Ed.) §§ 1218 to 1225; 4 Kent Com., (9 Ed.) top p. 170, side p. 152; 2 Washburn Real Prop., (4 Ed.) p. 506, §§ 87, 88; Pratt v. Eaton, 65 Mo. 157; Skinner v. Purnell, 52 Mo. 96; Carter v. Holman, 50 Mo. 498; McQuie v. Peary, 58 Mo. 58; Cornet v. Bertelman, 61. Mo. 118. Although Slatten's deed of trust was acknowledged before the trustee therein, yet it was good as against Dyer and those claiming under him, and all others having actual notice. Black v. Gregg, 58 Mo. 565. Mrs. Dyer could have no dower in preference to the purchase money. Wag. Stat., 698, § 5; 51 Mo. 221; 57 Mo. 552; R. S., § 2188.

RAY, J.

Josiah Bennett instituted this proceeding in the circuit court of Harrison county, Missouri, at the March term, 1876. He died April 20th, 1877, and at the September term, 1877, his death was suggested and the action renewed in the name of his said administrator, Henry Bennett, the present plaintiff. The subject matter of the controversy grows out of an exchange of farms between said Josiah Bennett and one Joseph Dyer. The defendant, Lucinda Shipley, was formerly the wife and widow of said Joseph Dyer, and has since intermarried with said George Shipley. The said George W. Flint is the administrator of the estate of said Joseph Dyer. The other defendants are all the children and heirs of said Dyer and are all minors, except the defendant, Mary C. Stanley, formerly Mary Dyer, and intermarried with her said husband Hiram Stanley. The pleadings, so far as we think material, are in substance as follows: The amended petition alleges that on January 15th, 1872, Joseph Dyer, now deceased, owned the following lands in Harrison county, Missouri. The west half of the southwest quarter of section 11, township 64, range 26, and the northwest fractional quarter, west of Grand River, of section 13, same township and range. That Josiah Bennett owned the west half of the northwest quarter of section 30, township 65, range 26, and the west half of the northwest quarter of section 30, township 65, range 27, in said county. That on that day said Bennett and said Dyer traded their said farms, by which trade each was to convey to the other by warranty deed their said lands respectively, free of incumbrances. That on said January 15th, 1872, Bennett executed his deed to Dyer and that Dyer and wife executed their warranty deed on April 13th, 1872. That at the date of said trade there was on the land Dyer traded to Bennett an unsatisfied deed of trust to secure to one Joseph P. Slatten a note for $1,587.50, and that it was agreed between Dyer and Bennett that Dyer was to change said deed of trust to the land Bennett traded to Dyer, and that there upon said deeds were exchanged, but that Dyer failed to effect said change of the trust deed. That Dyer died insolvent. That his widow afterwards married defendant, George Shipley; that said trust deed was foreclosed, and that by reason thereof, Bennett lost the land he got of Dyer. Judgment is asked against defendants for $1,500, and for the enforcement of a vendor's lien against the land Bennett traded to Dyer.

The separate answer of said Lucinda Shipley, as far as material, is in substance as follows: It admits the death of the parties and subsequent marriage of Mrs. Dyer; it admits that the farms were exchanged and the deeds made, but claims the trade was made and deeds executed without any understanding that either party reserved a lien for the purchase price, or that the incumbrance on the Dyer land was to be removed, and with no contract or obligation other than what was contained in the covenants of the deeds. It then set up facts claimed to show the right of homestead in defendant, Lucy Shipley, to said west half of the southwest quarter section of section 11, township 64, range 26, which is part of the land involved in this suit. It charges further that she did not sign the trust deed to secure Slatten on the land traded by Dyer to Bennett, of which her late husband was seized in fee with his title on record long prior to the date of the trust deed, and which was occupied as their homestead, and did sign the deed to Bennett expecting to have the same interest and rights as to homestead and dower in the land traded by Bennett to Dyer; that she had no notice of any incumbrance on her husband's lands, and that for the reason that she had not joined in the deed of trust said Slatten paid to Bennett $500 to get her interest in the land traded to Bennett. It charges that said deed of trust was acknowledged by D. J. Heaston, the trustee therein, and was, therefore, void in law, constituted no notice to Bennett, and was no incumbrance on the lands embraced therein. There was a guardian ad litem appointed for said minor children, defendants, and their answer is in the usual form. The replication to the separate answer of Lucinda Shipley was a general denial of all its allegations.

From the pleadings and evidence we gather, the material facts to be as follows: The farms exchanged by Dyer and Bennett in January, 1872, were about eight miles apart, embraced about the same number of acres, and were, it seems, of about equal value. Each of them was to execute a warranty deed for the land by them owned. About a week after they had agreed to make the exchange, Dyer and Bennett went to town to execute the deeds, but found the notary absent from home. Dyer then gave Bennett the numbers of the land, with instructions to have the notary draw the deeds for him to execute when he came in. On January 15th, Bennett went to see the notary, who then drew up both deeds, both of which bear the same date; and Bennett then signed and executed his deed, and left it with the notary. On January 17th, two days afterward, the parties removed and changed the possession of their farms respectively. Dyer and wife executed and acknowledged their deed to Bennett, April 13th, 1872. It was filed for record March 24th, 1873, while Bennett's deed to Dyer was filed for record April 25th, 1873. These deeds were read in evidence by plaintiffs below, as was also a certain deed of trust on the land Dyer traded to Bennett, executed by Dyer alone, his wife, the defendant Lucinda Shipley, not joining therein. Said deed of trust was dated August 20th, 1869, was acknowledged before Heaston, the trustee therein, and filed for record...