Boothe v. Cheek

• Decision Date: 06 December 1913
• Citation: 161 S.W. 791,253 Mo. 119
• Parties: BOOTHE et al. v. CHEEK et al.
• Court: Missouri Supreme Court

161 S.W. 791

253 Mo. 119

BOOTHE et al. v. CHEEK et al.

Supreme Court of Missouri, Division No. 1.

December 6, 1913.

1. EVIDENCE (§ 208) — ADMISSIONS — PLEADINGS IN FORMER ACTION.

In a partition suit in which defendants claimed by adverse possession, a petition filed by defendants in a former partition suit, in which they alleged that they jointly owned one-half of the same lands and believed that the present plaintiffs owned the rest as heirs, was admissible in evidence on the issue of adverse possession, as an admission that defendants were not then holding adversely, though no estoppel was pleaded in the present action.

2. ADVERSE POSSESSION (§ 85)—SUFFICIENCY OF EVIDENCE.

Evidence in partition held not to show that defendants held the land adversely so as to prevent partition.

3. TENANCY IN COMMON (§ 15) — ADVERSE POSSESSION AGAINST COTENANTS.

The mere possession of land by a cotenant was not sufficient to compel his cotenants to bring ejectment before maintaining a suit in partition.

4. FRAUDULENT CONVEYANCES (§ 176) — RIGHTS OF ORIGINAL PARTIES—RESULTING TRUST.

If land was purchased with another's money, under an arrangement with the latter, for the purpose of defrauding his creditors, equity would not raise a trust in the land in favor of the person who actually furnished the money.

5. WILLS (§ 6) — ESTATES PASSING — TRUST INTEREST.

An equitable interest, such as a resulting trust, would pass under the beneficiary's will if its terms were sufficient to pass such interest.

6. WILLS (§ 742)—ESTATE CONVEYED—INTEREST UNDER WILL.

A conveyance of an interest in land by the sole devisee thereof before probate of the will would take effect upon the subsequent probate, after contest, by relation back, as of the date of the deed; Rev. St. 1909, § 6313, impliedly recognizing the operative effect of unproved wills in case of actual notice.

7. TRUSTS (§ 147)—RIGHTS OF BENEFICIARY— CONVEYANCE OF INTEREST.

A cestui que trust entitled to a conveyance, may direct that it be made to another so as to pass his whole interest in the property.

8. DEEDS (§ 120)—PROPERTY CONVEYED.

A grantee, though the grantor's heir, cannot take more than the grantor has to convey.

9. PLEADING (§ 8)—CONCLUSIONS OF LAW.

An allegation that a certain deed was ineffective is a conclusion of law and not an allegation of fact.

Appeal from Circuit Court, Boone County; N. D. Thurmond, Judge.

Action by S. R. Boothe and others against Stephen M. Cheek and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

N. T. Gentry, of Columbia, for appellants. Gillespy & Conley, of Columbia, for respondents Boothe and others. Don C. Carter, of Sturgeon, for respondents Hulen and others.

BLAIR, C.

This appeal is from a decree of the circuit court of Boone county partitioning 120 acres of land. John Hutts formerly owned the land, but in 1876 a judgment for $1,628.65 against him was obtained by the administrators of John Kinkead and the land was sold under execution in April, 1877. Under an arrangement with Hutts, George T. Drain bought in the land for him with money which the weight of the evidence shows Hutts furnished. The price paid was less than half the judgment. There is evidence this plan was adopted by reason of other debts Hutts owed and to prevent the subjection of the property to their payment. Drain held the title thereafter, Hutts retaining possession and repaying to Drain the sums expended for taxes. Drain several times urged Hutts to take the title, saying it was not his (Drain's) land and he wanted it "fixed up." Hutts told him it was as he desired and said he wanted him to have it if he (Drain) outlived him. Hutts died in March, 1901, leaving a will he had executed in Virginia in 1862, whereby he devised all his property to his wife, Sophia Hutts, who survived him. The couple was childless. In November, 1901, Drain, at Mrs. Sophia Hutts' direction, executed a deed to the land in suit whereby he conveyed to her a one-half interest in the land in fee and a life estate in the remaining one-half interest, remainder in fee to the heirs of John Hutts. At this time Mrs. Hutts knew of the existence of the will mentioned, but one of the witnesses testifies she thought it was too old to be effective. In December, 1901, Sophia Hutts executed a deed whereby she conveyed to appellant Stephen M. Cheek, "for and in consideration of love and esteem and one dollar, * * * her interest, which is one-half interest in the undivided tract or parcel of land described" as in the petition, the deed then reciting that Mrs. Hutts reserved "full control of said land and all of the profits thereof during her natural life." October 26, 1905, appellant Stephen M. Cheek, for a recited consideration of $700, executed a deed whereby he conveyed to his sister and coappellant, Mary E. Cheek, "the following described tract or parcel of land, situated in the county of Boone, in the state of Missouri, to wit, all of my undivided interest in," describing the land in suit, and proceeding: "This deed is given subject to the lifetime dower now held by Sophia Hutts. This deed is also given with the understanding that in case of the marriage or death of the said Mary E. Cheek the land herein described is to go to Stephen M. Cheek." In October, 1906, Sophia Hutts died, and thereafter at some time prior to the February, 1907, term, of the Boone circuit court, the present appellants, Stephen M. and Mary E. Cheek, instituted a suit to partition the land here involved. The original petition in that suit was not offered in evidence in this, but on March 7, 1907, an amended petition was filed in which plaintiffs, the present appellants, alleged they owned jointly an undivided one-half of the lands now in suit, and that they were "informed and believed" that those made defendants, the heirs at law of John Hutts, owned the remaining half. In May, 1907, appellant Stephen M. Cheek caused the will of John Hutts to be probated, but it does not appear when, if at all, the partition suit, instituted by him and his sister, was dismissed.

In May, 1908, this suit was instituted. The plaintiffs and defendants constitute all the heirs at law of John Hutts and Sophia Hutts. June 1, 1908, these appellants filed in this suit an answer in which the will of John Hutts and the deeds executed by Drain and Sophia Hutts are set up; and it is averred, among other things, that "whatever right, title, or interest plaintiffs (the heirs of John Hutts) acquired under the aforesaid deed of the said George T. Drain inured to the benefit of these defendants (the appellants here) or to the heirs at law of the said Sophia Hutts," and prayed that certain other heirs of Sophia Hutts be brought in, which, it appears, was done. In April, 1909, a second amended petition was filed. The parties plaintiff are all the heirs of John Hutts except Geneva and Leroy Hulen, who are made defendants. Plaintiffs, excepting Mollie Hutts and Patrick Hutts, are the children, and defendants Geneva and Leroy Hulen are children of a deceased daughter of J. H. Boothe, who was a brother of Sophia Hutts and whose wife was a sister of John Hutts. Plaintiffs, excepting Patrick and Mollie Hutts, and defendants Geneva and Leroy Hulen, are therefore heirs at law of both John Hutts and Sophia Hutts, his wife. The second amended petition proceeds somewhat upon the theory of the original answer filed in this case by appellants, alleges that by the deed from Drain, providing that at the death of Sophia Hutts an undivided one-half of the land in suit should go to the heirs of John Hutts, these heirs took nothing, but "whatever title they acquired inured to the benefit of Sophia Hutts, who was their equitable owner," etc., and prayed that the property be partitioned, one-half to appellants and one-half to the heirs at law of Sophia Hutts. Appellants' amended answer "admitted" that Sophia Hutts took the whole under Drain's deed, prayed that the deed from Sophia Hutts to Stephen M. Cheek be reformed by striking out the words "which is one-half interest," and averred that appellants were in the adverse possession of the land. The minor defendants answered, denying all allegations in the petition. A reply, denying all allegations of new matter in appellants' answer, was filed.

The weight of the evidence showed that Drain executed the deed to Sophia Hutts by her direction and by his deed in November, 1901, conveyed the land as she desired it conveyed. The evidence offered by appellants to show that Sophia Hutts intended by her deed of December, 1901, to attempt to convey to appellant Stephen M. Cheek the whole of the land in suit, has a very clear tendency to the contrary. It consisted of her declarations that she intended he should have "all she owned," "all she possessed," "her interest" in and "her part" of the land. The evidence on the issue of adverse possession will be adverted to in the course of the opinion. The trial court found appellants to be entitled to one half the land, that the heirs at law of John Hutts were entitled to the remaining half, and found that partition in kind could not be made, and ordered the land sold and distribution of the proceeds made accordingly. Stephen M. Cheek and his sister are the sole appellants.

Counsel contends: (1) That appellants were in such adverse possession as to preclude partition; (2) that the court erred in admitting in evidence the petition filed by appellants in the suit previously instituted by them; (3) that the deed from Sophia Hutts to Stephen M. Cheek should be either (a) construed to convey the whole of the land, or (b) reformed; and (4) that there was error in awarding to plaintiffs a larger share of the land than claimed in the petition.

1. (a) The petition filed by appellants in the suit they previously instituted was competent upon the issue of adverse possession as an admission by appellants that they...