Castleman v. Castleman

• Decision Date: 23 November 1904
• Citation: 184 Mo. 432,83 S.W. 757
• Parties: CASTLEMAN v. CASTLEMAN.
• Court: Missouri Supreme Court

83 S.W. 757

184 Mo. 432

CASTLEMAN v. CASTLEMAN.

Supreme Court of Missouri, Division No. 1.

November 23, 1904.

CANCELLATION OF DEEDS — JURISDICTION — VENUE — MUTUAL MISTAKE — PETITION — AMENDMENT — WAIVER OF ERROR — WILLS — CONSTRUCTION — ELECTION BY WIDOW — FILING OF ELECTION.

1. A suit in equity to cancel a deed is one directly affecting title to real estate, within Rev. St. 1899, § 564, which declares that such suits shall be brought in the county within which the real estate is situated, and hence the summons may be served in any county in the state where defendant resides or may be found.

2. Where the petition in a suit to set aside a deed alleged that it was procured by the fraud of the grantee, it was proper to permit an amendment alleging that the deed was executed under mutual mistake, the amendment not introducing a new cause of action inconsistent with the cause set forth in the original petition.

3. A defendant answering to the merits after the court has denied his motion to strike out an amended petition waives the error of the court in denying the motion.

4. Where the cross-bill is blended with matter pleaded as affirmative defense, a reply denying the new matter is sufficient to deprive defendant of the right to a judgment pro confesso on the cross-bill, though the Code requires a separate answer to a cross-bill and a reply to the new matter, where the answer contains new matter and a cross-bill.

5. Rev. St. 1899, § 2945, which prescribes that a widow's election to take a child's share in fee, as provided by section 2944, shall be by a declaration in writing, acknowledged before an officer authorized to take acknowledgments of deeds, and filed for record in the office of the recorder of the county in which letters testamentary were granted, requires the filing of the declaration as an essential part of the election, and, to be effectual, it must be filed for record by the widow herself, or by some one as her agent, during her lifetime.

6. A testator gave his wife an undivided one-half of his land for life, after her death to go to trustees for the use of his daughter for life, and at her death to her children in fee. The other half he gave to trustees for the use of the daughter for life, and at her death to her children in fee. The widow renounced the provisions of the will, and signed and acknowledged a paper purporting to be an election to take a child's part of the testator's estate in lieu of dower, but this paper was not filed in the recorder's office until after her death. Held, that the widow's renunciation only freed the half of the estate from the life estate therein given her by the will, leaving the daughter to take her life estate, and her children the fee in remainder.

7. Where both parties to a conveyance understood that their grandmother had made her election to take a child's part, and not the half of the estate devised to her for life by a will, which gave on her death that half to trustees for the use of testator's daughter for life, with remainder to her children, the parties to the conveyance, and which gave the other half to trustees for the use of the daughter for life, with remainder in fee to her children, when in fact she had not made a valid election, the parties acted under a mutual mistake of fact, authorizing equity to set aside the conveyance.

Appeal from Circuit Court, Howard County; Jno. A. Hockaday, Judge.

Action by Robert H. Castleman against Ben T. Castleman. From a judgment for plaintiff, defendant appeals. Affirmed.

Ben T. Castleman, in pro. per. Sam. C. Major, J. W. Jamison, and W. M. Williams, for respondent.

VALLIANT, J.

This is a suit in equity to set aside two deeds, one by the plaintiff and wife to one Rutherford, the other by Rutherford and wife to defendant. The suit was begun in the circuit court of Cooper county, taken by change of venue, on motion of the defendant, to Howard county, where it was tried, and final judgment was rendered for the plaintiff canceling the deeds, reinvesting the title in plaintiff, stating an account between the parties, giving defendant credit for the money paid for the canceled deed, and decreeing partition of the land between plaintiff and defendant, from which judgment the defendant has prosecuted this appeal.

1. At the threshold of the case is raised a question of jurisdiction. Plaintiff resides in Cooper county, the land affected by the deeds in question is in that county, the suit was instituted there, the summons issued to the city of St. Louis, where defendant resides, and was served on him there. Defendant moved the court to dismiss the suit on the ground that the circuit court of Cooper county had no jurisdiction. The motion was overruled, and exception taken. The position of appellant on this point is that this is a personal suit, and could be brought only in the county of his residence, or "where the plaintiff resides and the defendant may be found." Appellant is correct in his general proposition that a court of equity acts in personam. And, since the suit is personal in its character, it must seek the person to be affected in the county of his residence, regardless of where the thing in controversy may be. State ex rel. v. Zachritz, 166 Mo. 313, 65 S. W. 999, 89 Am. St. Rep. 711. But our statute has ingrafted one exception to that rule. Section 564, Rev. St. 1899: "Suits for the possession of real estate, or whereby the title thereto may be affected, shall be brought in the county within which such real estate, or some part thereof, is situate." Title to real estate is directly affected in this suit. By the decree appealed from, the appellant is divested of title, and the plaintiff invested with the same. Keyte v. Plemmons, 28 Mo. 104; Ensworth v. Holly, 33 Mo. 370; Hannibal, etc., Ry. v. Mahoney, 42 Mo. 467. Since the law requires the suit to be brought in the county in which the land lies, it follows that the summons may be sent to any county in the state where the defendant resides or may be found. It has been so held in attachment suits, and the principle is the same in suits of this kind. Magrew v. Foster, 54 Mo. 258, loc. cit. 261; Stone v. Trav. Ins. Co., 78 Mo. 655. We hold that this suit was properly brought in the circuit court of Cooper county.

2. In the original petition filed, the plaintiff alleged that Rutherford, to whom he made the deed, was the undisclosed agent of defendant in the transaction, and that plaintiff's deed to Rutherford was induced by fraudulent representations of defendant, to whom Rutherford shortly made his deed. The interest in the land which the plaintiff alleged in his first petition that he owned at the time he made his deed to Rutherford was an undivided one-fourth, while the defendant owned the rest. But on the first day of the term to which the original summons was returnable the plaintiff, by leave of court, filed an amended petition, and in that he made the statement that, at the time he made the deed to Rutherford, he and the defendant were both under the belief that he owned only an undivided one-fourth of the land and the defendant the rest, whereas by certain facts therein stated, of which, at the time, both he and the defendant were ignorant, but which he had since discovered, he, in fact, owned an undivided one-half of the land; and that, in addition to the fraudulent misrepresentations stated in the original and repeated in the amended petition, the deed to Rutherford was executed under a mistake of fact mutual to plaintiff and defendant. The defendant filed a motion to strike this amended petition from the files, on the grounds that it introduced a new cause of action and blended two causes, inconsistent in their natures, in one petition, and that the new matter pleaded constituted no ground for relief. This motion was overruled, and exception taken. The motion was properly overruled. The amendment only introduced additional facts in support of the original object of the suit, which was the cancellation of the deeds mentioned. When the plaintiff filed his original petition, both he and defendant (so the amended petition says) were under the belief that their grandmother had elected to take a child's part of their grandfather's estate, and had done so, and that, in consequence thereof, on the death of their grandmother the one-half the land she owned descended to her daughter, the mother of these parties, and had passed to the defendant under a deed from her. But after the filing of the original petition, plaintiff discovered that their grandmother had not elected to take a child's part of her husband's estate, and in consequence, under their grandfather's will, each was the owner of an undivided one-half of the land. So the amended...