Butler v. Carpenter

• Decision Date: 12 June 1901
• Citation: 63 S.W. 823,163 Mo. 597
• Parties: BUTLER et al. v. CARPENTER et al.
• Court: Missouri Supreme Court

63 S.W. 823

163 Mo. 597

BUTLER et al. v. CARPENTER et al.

Supreme Court of Missouri, Division No. 1.

June 12, 1901.

TENANCY IN COMMON — EJECTMENT — DEFENSES — TRUSTS — LIMITATION OF ACTIONS — EQUITY.

1. An equitable title well pleaded in ejectment, based on the legal or paper title, is a good defense.

2. In ejectment by the holders of the legal title, defendant alleged that 20 years before the land was purchased by plaintiff's ancestor under an agreement by which defendant paid half the price, and such ancestor took the title in trust for defendant to the extent of an undivided half interest therein, and that ever since defendant had occupied the land as a tenant in common with such ancestor until his death, and since with plaintiffs, and prayed for partition. Held, that such defense is not stale, nor barred by limitations.

3. Defendant, owning two-thirds of a tract of land sold in partition, agreed with plaintiffs' father that he should purchase at the sale, take title, and hold to the extent of an undivided half interest in trust for defendant; and defendant, without other consideration, receipted for his two-thirds of such purchase money, and had since occupied as tenant in common with plaintiffs' father until his death, and since with plaintiffs. Held, that under Rev. St. 1899, § 3417, providing that, when a conveyance is made of land by which a trust arises by implication of law, such trust shall be of force, the trust was valid, and not governed by section 3416, providing that all trusts of lands shall be in writing.

Appeal from circuit court, Stone county; J. C. Lamson, Judge.

Action by J. L. Butler and others against Daniel Carpenter and others. From a judgment for plaintiffs, defendant Carpenter appeals. Reversed.

Carr McNatt, T. L. Viles, and Geo. W. Thornberry, for appellant. Albert Hodges, T. J. Gideon, and W. G. Gideon, for respondents.

ROBINSON, J.

This is an action of ejectment in the usual form for 130 acres of land in Stone county, by the heirs at law of Elbert N. Butler, deceased, against the appellant and his tenant, in possession of a portion of the premises. The appellant, Daniel Carpenter, filed the following answer: "Comes now the defendant Daniel Carpenter and for his separate answer to the plaintiffs' petition denies each and every allegation therein contained, except such as are herein admitted. Defendant admits that the plaintiffs are the heirs at law of the said E. N. Butler, now deceased, and that he is now, and for a long time prior to the ouster herein alleged has been, in possession of a portion of said real estate, but not to the exclusion of the plaintiffs herein, nor their ancestor, the said E. N. Butler. And for further defense to plaintiffs' action this defendant avers: That during the life of the said E. N. Butler (common ancestor of plaintiffs), to wit, about 1880, this defendant was the owner in common with his co-tenants of the real estate sued for, and at ____ term, 1880, of this court a partition suit was begun and prosecuted, wherein Daniel Carpenter et al. were plaintiffs and Martin Pitts et al. were defendants, for the partition of said premises between the said owners thereof, and to that end this court, at the February term, 1881, thereof, made a finding and decree to the effect that this defendant was the owner in fee of the undivided two-thirds of said premises, and that the same be sold in partition, and that the purchase price thereof be divided between the several owners as their interest appeared. That by virtue of said finding and decree this defendant was entitled to two-thirds of the proceeds of such sale after the payment of the cost and expense of said partition. That this defendant, having the largest interest in said real estate, and not being at the time financially able to pay for the interests of his co-tenants and the cost and expense of said partition, and in order to prevent the sacrifice of said real estate at such sale, entered into an agreement with the said E. N. Butler, the ancestor of the plaintiffs, by which verbal contract said land was to be bid in by and stricken off to the said E. N. Butler, who contracted and agreed with this defendant that he would pay in on said sale in cash the sum of two hundred and fifty dollars to be applied to the payment of the cost of said partition and the payment of defendant's co-tenants their one-third of such purchase price. That this defendant agreed to and did receipt the said E. N. Butler for his two-thirds of said purchase price without the payment to him of any money or valuable thing whatever. But in consideration therefor the said Butler agreed to take the title deed to said premises, and to hold the legal title thereto, but in trust for this defendant, to the extent of an undivided half interest in and to said real estate in plaintiffs' petition described, to wit, the N. W. frl. ¼ of N. W. frl. ¼, S. W. frl. of N. E. frl. ¼, and S. E. frl. of N. W. frl. ¼, all in section 36, and also N. E. frl. ¼ of N. W. frl. ¼, section 35, all in twp. 22, range 23 west of 5th principal meridian, on right bank of White river, descending, in Stone county, Missouri, — containing one hundred and thirty-one and 85/100 acres, more or less. That by virtue and in pursuance of said agreement the said land was bid in by said Butler at the price and sum of four hundred dollars, and the two hundred and fifty dollars by him paid to the sheriff of Stone county; and the receipt of this defendant was by said Butler turned into said...