Cook v. Newby

• Decision Date: 03 July 1908
• Citation: 112 S.W. 272,213 Mo. 471
• Parties: COOK v. NEWBY et al.
• Court: Missouri Supreme Court

112 S.W. 272

213 Mo. 471

COOK v. NEWBY et al.

Supreme Court of Missouri, Division No. 1.

July 3, 1908.

1. STIPULATIONS—ENFORCEMENT.

A court of equity properly refuses to specifically enforce a stipulation for judgment, the answer and proofs admitting and showing it does not contain all the compromise agreement, but omits important features thereof, the compromise scheme clearly pointing to a consultation of the attorneys for both parties, and the drafting of a stipulation that would meet with the approval of counsel, and effect a just and final settlement of a family trouble, and there being evidence that the stipulation was drawn by defendants' counsel and forwarded to defendants, and that plaintiff was illiterate and needed the advice of counsel, and did not fully understand its effect, and was unduly hurried in its execution by defendants, in the absence of plaintiff's counsel, though requested to wait a day or so for its examination and approval by such counsel.

2. CANCELLATION OF INSTRUMENTS — DEFENSES.

It will not avail defendants in a suit to cancel a deed from plaintiff to them that plaintiff obtained title with the separate means of his wife, and that she joins in upholding the conveyance to defendants; plaintiff having bought the land prior to enactment of the married women's enabling acts, the money having been reduced to his possession, with her approval and acquiescence, the title having been taken in him with her knowledge, and remained therein with her consent, defendants having been willing to take his title by a deed conveying it, and conveying merely an inchoate dower interest by his wife, and there being nothing to show such deed was made because the wife was the beneficial owner of the land, but it having been negotiated for, and made, on the theory that the land belonged to plaintiff.

3. HUSBAND AND WIFE — AGENCY OF WIFE FOR HUSBAND.

A letter written by plaintiff's wife, but with his knowledge and at his request, to defendants, promising to give defendants a farm, title to which was in plaintiff, if defendants would come and live with plaintiff and his wife, is admissible against plaintiff.

4. DEEDS—DELIVERY.

To induce, as it did, action on the part of defendants and place beyond doubt their having his farm on his death, plaintiff executed a deed thereof, and at the same time signed a memorandum, directing A. to hold the deed during plaintiff's life and at his death to cause it to be recorded, and reciting that he relinquished all right and title to the farm, excepting possession and use during his lifetime, and placed the deed and memorandum in the possession of A. Held, that there was a delivery, vesting title in defendants, subject to the life estate of plaintiff, qualified by the arrangement, entered into as the consideration of the deed, that defendants should come and live with plaintiff on the farm.

5. SAME—RECORDING DEED.

Plaintiff not being injured by the recording of a deed, which vesting in defendants the title, subject to plaintiff's life estate, may not complain of the recording, though it was without his consent, and in breach of a trust not to record it till his death.

Appeal from Circuit Court, Gentry County; W. C. Ellison, Judge.

Suit by Mancil G. Cook against Laura A. Newby and others. Decree for plaintiff. Defendants appeal. Reversed and remanded, with directions.

Platt Hubbell and Geo. Hubbell, for appellants. E. C. Lockwood, W. F. Dalbey, and C. H. S. Goodman, for respondent.

LAMM, J.

By his bill in equity, and a count at law in ejectment, plaintiff sued the Newbys to set aside an unconditional warranty deed to 120 acres of land in Gentry county, Mo., and the record of it, and to recover possession of the land. Such steps were taken that Harriett, wife of plaintiff, became a party defendant. A decree on the equity side going in favor of plaintiff and a judgment of ouster with one cent damages going on the count in ejectment, all the defendants appeal. The equity count, in substance, sets forth that plaintiff is the owner of the land; that on July 20, 1903, he and his wife, Harriett, signed and acknowledged a warranty deed conveying the land to the Newbys, as husband and wife; that the deed was not delivered, but was left with a depositary to be held until demanded by plaintiff; that, without plaintiff's consent or knowledge, the Newbys fraudulently obtained possession of it, and caused it to be recorded for the purpose of defrauding plaintiff out of the land; that the deed purports to be for a consideration of the love grantors bore the grantees and $100, but that said $100 and no other consideration was paid plaintiff for the land; that the deed and the record thereof are void and constitute a cloud upon plaintiff's title; wherefore a decree is prayed adjudging plaintiff the legal and equitable owner of the real estate, that the deed and its record be canceled, and for all proper relief. The court in ejectment is conventional. The Newbys filed an amended answer subdivided into counts, viz.: The first count was a general denial of each and every allegation, saving those expressly admitted. The second count states the deed was executed by plaintiff and his wife in the form of a general warranty and conveyed to the Newbys the real estate described; that it was for a good and valuable consideration acknowledged by grantors, and was duly put of record; that, by virtue of it, grantees are the owners of the land in fee simple absolute; that the plaintiff claims some title or right in and to said real estate, wherefore affirmative relief is asked under section 650, Rev. St. 1899, to wit, that the court ascertain and determine the title and right of the parties, respectively, and adjudge and decree title and for any other proper relief. By the third count the Newbys say: The deed was in the nature of a family settlement, giving to Laura A. Newby the portion she was to receive in the estate of plaintiff and his wife, Harriett. That the defendant Laura A. is the child of Mancil G. and Harriett Cook, and intermarried with her codefendant John H. That theretofore Mancil G. and Harriett had conveyed to their other children certain real estate by way of family settlement. By way of matter of inducement leading up to the conveyance, it is next alleged: That Mancil G. and Harriett after the marriage of Laura A. contracted with her and her husband that the Cooks and Newbys were to live on the home farm, and divide the profits in consideration of the Newbys assisting in maintaining a home for Mancil G. and Harriett. That they entered into the performance of said agreement, and the Newbys made valuable improvements on the farm, but the plaintiff, Mancil G., violated the contract and rented the farm to others and the Newbys then moved to a farm near Cameron, Mo. That afterwards Mancil G. and Harriett induced them to return under an agreement to convey the farm to them, but, on their compliance, neglected to make the deed pursuant to the agreement. That thereupon in March, 1903, the Newbys moved from the farm and rented another adjacent. That in July, 1903, the Cooks made a proposition that, if the Newbys would return to the home farm, it should be deeded to them. That, having in mind the failure to perform the former agreements, they declined the offer, unless the conveyance was made as a condition precedent to their return. That thereupon Mancil G. and Harriett promised and agreed to make such conveyance as such condition precedent, and, in pursuance thereof, all the parties met on July 20, 1903, and the deed was made. That, when made, it was delivered and placed in the possession of one Axtell to be held by him (under an agreement of the grantors and grantees) until the death of Mancil G. and Harriett, when it was to be delivered by him to the Newbys and recorded. That Mancil G. and Harriett then and there relinquished all claim or right to said deed or the land, except the right of joint possession of said land with the Newbys. That the consideration of said deed was that the Newbys should keep certain live stock for Mancil G. (describing it), and that the Newbys should remain on the farm, and assist Mancil G. and Harriett in maintaining it as a home, and that a further consideration was the settlement on Laura A. of her share in the estate of Mancil and Harriett. That thereafter, in consideration of the delivery of said deed, the Newbys returned to the farm and performed valuable services and made valuable improvements. That thereafter said Axtell contemplated removing to Oklahoma. That in this emergency it was agreed by the parties in interest that the deed should be taken from Axtell's possession and placed in the possession temporarily of one Simms, and this was done. That afterwards in July, 1904, by the new agreement of all of the parties in interest, the deed was taken out of the hands of Simms, delivered to the Newbys, and recorded. That the execution of the deed and its record were the result of mature deliberation on the part of all the parties interested. That the Newbys performed all their obligations under the contract and conveyance. Wherefore, they renewed their prayer to have the court determine the title and rights of the parties and establish title by its decree, etc. In the fourth count of their answer the third count is referred to and adopted. It next alleges: That in August, 1904, plaintiff instituted a suit of like character to the present one, which he dismissed in September of that year voluntarily; that in October of that year he instituted the present suit. That in November following he came to defendants, and wanted the suit settled and stopped so it could never be started again, and offered to sign a contract to that effect if the Newbys would agree to pay him $100 per year in lieu of feeding and caring for certain live stock as contemplated in the first agreement. That said proposition was accepted, and a compromise evidenced by a...