Burke v. Murphy
| Citation | 205 S.W. 32,275 Mo. 397 |
| Parties | MARY BURKE and JOHN W. ENNIS v. THOMAS MURPHY and ELLEN DROMEY, Appellants |
| Decision Date | 16 July 1918 |
| Court | Missouri Supreme Court |
Appeal from Knox Circuit Court. -- Hon. Charles D. Stewart, Judge.
Affirmed.
L. F Cottey and J. C. Dorian for appellants.
(1) The conveyance from James Murphy and wife to their daughter dated November 5, 1874, was a mortgage, because it was made by the parents as security to their daughter for the performance by her of the stipulations contained in the defeasance, of same date and filing, wherein the daughter agreed to maintain her father and mother as contractors, for the payment of said property, during their natural lives in decency and comfort, and that the cancellation of the defeasance (called a bond and agreement), two days after it was filed, operated to nullify and cancel the mortgage. O'Neill v. Capelle, 62 Mo. 207; Book v Beasly, 138 Mo. 463; Reilly v. Cullen, 159 Mo. 329. The recent case of Brightwell v. McAfee, 249 Mo. 562, is clearly in point and decisive of our contentions in the instant case. (2) It is manifest that the conveyance from the father (the mother joining merely to convey her dower under the old form of acknowledgment), to the daughter, was the sole consideration for the contemporaneous agreement, or defeasance, between the father and daughter; and that the cancellation of the latter, ipso facto, nullified the former. That was the construction the parties put upon it at the time, and for thirty-five years thereafter. It is the business of a court to ascertain and determine the meaning and intention of the parties in making an agreement. The courts are not at liberty to disregard the construction which the parties to a deed, by their acts and conduct, have placed upon it for a long period of years. Patterson v. Camden, 25 Mo. 22; St. Louis Gas Co. v. St. Louis, 46 Mo. 130; Jones v. DeLassus, 84 Mo. 545; Depot Co. v. Railway Co., 131 Mo. 305; Williams v. Santa Fe Ry. Co., 153 Mo. 534. (3) If Mary Murphy, Sr., and her sole heir at law, Mary Burke, plaintiff, acquired any right under the conveyance of November 10, 1874, then such rights have been waived by the acts and conduct of the parties. And by parties is meant both mother and daughter, because the daughter is the sole beneficiary of her mother, and, according to the record, the acts and conduct of the daughter, with respect to said lands, go hand in glove, with the acts and conduct of her mother, with respect to said lands. The facts authorize the application of the doctrine of waiver in this case. Hayes v. Manning, 263 Mo. 1.
John W. Ennis, pro se and for other respondents.
(1) A deed made to a husband and wife creates an estate by the entirety and the title passes to the survivor. Gibson v. Zimmerman, 12 Mo. 385; Gardner v. Jones, 52 Mo. 68; Frost v. Frost, 200 Mo. 480. (2) The law presumes that a deed, absolute on its face, is what it purports to be and the burden is on the grantor to overcome the presumption by clear and convincing evidence. A conveyance cannot be construed to be a mortgage if there is no debt of the grantor due to the grantee. The infallible test is that there must be a debt due from the grantor to the grantee. Duell v. Leslie, 207 Mo. 658; Jones v. Hubbard, 193 Mo. 163; Bobb v. Wolff, 148 Mo. 335; Book v. Beasley, 138 Mo. 460; Whelen v. Tobner, 71 Mo.App. 371; Worley v. Dryden, 57 Mo. 226; Hargadine v. Henderson, 97 Mo. 375; Brightwell v. McAfee, 249 Mo. 562. (3) The question of waiver is mainly a question of intention which lies at the foundation of the doctrine. Waiver must be manifested in some unequivocal manner, and to operate as such it must in all cases be intentional. There can be no waiver unless it is so intended by one party and so understood by the other, or one party has so acted as to mislead the other and is estopped thereby. Gillen v. Insurance Company, 178 Mo.App. 106; Fulkerson v. Linn, 64 Mo.App. 653; Francis & Hunter v. A. O. U. W., 150 Mo.App. 355; Reed v. Bankers' Union, 121 Mo.App. 419. Mary Murphy, Sr, could not waive that of which she was ignorant, nor could she be estopped where her course of conduct had led no one to change his condition to his prejudice. Seek v. Haynes, 68 Mo. 15; Hayes v. Manning, 263 Mo. 1; Fairbanks Morse Company v. Baskett, 98 Mo.App. 64; Belknap v. Bender, 75 N.Y. 453. If no one has been misled to his hurt, if no injury has arisen from the conduct, declarations or silence of a party, he will not be estopped from contradicting them, even though they would be conclusive against his right if not contradicted. Harrison v. McReynolds, 183 Mo. 548; Bramell v. Adams, 146 Mo. 83; Acton v. Dooley, 74 Mo. 67; Blodget v. Perry, 97 Mo. 273; Mueller v. Kaeffmann, 84 Mo. 329. Where a homestead is set off to a widow who owns the fee simple title to the land set apart as homestead, neither the widow nor her heirs are estopped from claiming fee. Hendrix v. Musgrove, 183 Mo. 300; Case v. Metzenburg, 109 Mo. 311; Ketchum v. Christman, 128 Mo. 38; Payne v. Daviess County Savings Association, 126 Mo.App. 599; Seek v. Haynes, 68 Mo. 15.
This is a suit under Section 2535, Revised Statutes 1909, to determine the title to the north half of the southeast quarter and the south sixty-five acres of the northeast quarter of section eighteen, township sixty-three, range twelve west. Knox County, Missouri.
A trial was had before the circuit court of Knox County, which resulted in a decree in favor of plaintiffs. Thereupon defendants duly appealed.
The petition is in the usual form. The answer contains six counts and alleges affirmative equitable defenses. No questions are raised as to the pleadings. If it becomes necessary we will refer to them in the course of the opinion.
James Murphy may properly be considered as the common source of title. He was twice married. His second wife was Mary Murphy, Sr. The defendants, Thomas Murphy and Ellen Dromey, were the only children by his first wife. Plaintiff Mary Burke (nee Murphy) was the only child by the second wife. Plaintiff John W. Ennis claims a one-third interest through mesne conveyances from the common source of title. Plaintiff Mary Burke claims a two-thirds interest in the same manner. Defendants contend that James Murphy did not succeed in disposing of this land by deed, but that he died seized of said land -- hence the two defendants and plaintiff Mary Burke as the sole surviving heirs each have an undivided one-third interest in the land.
The legal title stands in the plaintiff, as will appear from the following conveyances of this land, to-wit: --
(1) Warranty deed dated November 5, 1874, from James Murphy (common source) and Mary Murphy, Sr., his wife, to Mary Murphy, Jr. (now Mary Burke, one of plaintiffs).
(2) Warranty deed dated November 10, 1874, from Mary Murphy, Jr., to James Murphy and his wife, Mary Murphy, Sr.
(3) (James Murphy died about 1877).
(4) Warranty deed dated June 14, 1913, from Mary Murphy, Sr., to John W. Ennis (plaintiff), conveying undivided one-third interest in the land.
(5) Warranty deed dated June 14, 1913, from Mary Murphy, Sr., to Mary Burke (plaintiff), conveying an undivided two-thirds interest in the land.
The evidence upon the part of the plaintiffs further tends to show that Mary Murphy, Sr., died about two months after the execution of the two deeds last above mentioned; that she was 96 years old at the time of her death; that from the death of James Murphy down to the date of her own demise she was in the possession of this land; she signed the deeds by mark and there was some evidence tending to show that she could neither read nor write; the evidence further tends to show that her mind was normal on the date of the execution of the deeds above mentioned.
Defendants' evidence tends to establish the following facts:
At the February term, 1878, of the Knox County Probate Court and upon the application of said Mary Murphy, Sr., as the widow of James Murphy, deceased, said court made an order appointing commissioners to set off and assign to said widow her homestead in said lands (and other lands). At the May term, 1878, said commissioners reported that they had set off as such homestead the land now in controversy. Said report was by the court approved and ordered filed.
At the June (1903) term of the Knox County Circuit Court Thomas Murphy and Ellen Dromey (defendants in the case at bar) instituted suit against said Mary Murphy, Sr., (now deceased), and Mary Burke (plaintiff in the case at bar) and her husband to enjoin said defendants from cutting timber therefrom and otherwise committing waste upon said land. The petition in that suit, among other things, alleged that James Murphy died seized of the fee simple title to said land and that said Thomas Murphy, Ellen Dromey and Mary Burke were the sole heirs of said deceased and each owned an undivided one-third interest therein subject to the homestead interest therein of the widow, Mary Murphy, Sr. The joint answer of Mary Burke and Mary Murphy, Sr., admitted the title as alleged in the petition in that suit, but denied that they were committing waste on said land. A trial was had resulting in a judgment for the defendants therein.
On October 3, 1912, Mary Murphy, Sr., Mary Burke and husband and Ellen Dromey instituted, as plaintiffs, a partition suit involving the land now in dispute. Thomas Murphy and his wife were made defendants in that suit. The petition therein alleged the title to be in Mary Burke, Thomas Murphy and Ellen Dromey as the sole heirs at law of James Murphy deceased, subject to the homestead interest of the widow Mary Murphy, Sr. The petition alleged that the widow joined as plaintiff and consented and asked that the land be...
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