Coulson v. Coulson

• Decision Date: 10 February 1904
• Citation: 79 S.W. 473,180 Mo. 709
• Parties: COULSON et al. v. COULSON.
• Court: Missouri Supreme Court

79 S.W. 473

180 Mo. 709

COULSON et al. v. COULSON.

Supreme Court of Missouri, Division No. 1.

February 10, 1904.

TITLE — DESCENT — RIGHTS OF HEIR — AVOIDANCE OF ANCESTOR'S DEED—DEEDS—DELIVERY—ACCEPTANCE—IMPLICATION—INFANTS— GUARDIANS AD LITEM—RECORD—VERITY.

1. An heir takes only such title as his ancestor had at the time of his death, and can avoid a deed made by the ancestor only when it could have been avoided by him.

2. Where a grantor took a child with her to a notary, dictated the deed, signed, sealed, and acknowledged it, and delivered it to the notary to be sent to the register of deeds, intending the same to operate as a present transfer of the interests specified therein, the law will imply a delivery of the deed by the grantor, and an acceptance by the infant of a beneficial interest created in her favor thereby.

3. Where the grantees of a deed knew that their mother had made it to them, subject to an annual charge in favor of another, had seen the record of it before her death, and had claimed title under it shortly after her death, an acceptance on their part will be implied.

4. It is the duty of plaintiffs, suing an infant, to have guardians ad litem appointed by the court, and, in case they fail to do so, they cannot object, on an appeal by the infant from a decree against her, that guardians were not appointed.

5. The recital in a decree of the appointment and appearance of a guardian ad litem imports verity.

Appeal from Circuit Court, Adair County; N. M. Shelton, Judge.

Action by W. B. Coulson and another against Myrtle B. Coulson. From a judgment for plaintiffs, defendant appeals. Reversed.

Millan & Greenwood, for appellants. C. E. Murrell and Campbell & Ellison, for respondent.

VALLIANT, J.

This is a suit in equity to set aside a deed made by the plaintiffs' mother in her lifetime. The ground on which the validity of the deed is assailed is that it was not delivered. The ground on which equity jurisdiction is invoked is that the deed, being on record, clouds the title of the plaintiffs. The land covered by the deed is a farm of 100 acres in Macon county. It was the property of the plaintiffs' mother, who died intestate, leaving these two plaintiffs her only heirs. The deed is in the words following: "This deed witnesseth—That Margaret A. Coulson, single, party of the first part, in consideration of the sum of one dollar to her paid, do hereby grant, bargain and sell, convey and confirm unto J. A. Coulson and W. B. Coulson, parties of the second part of the following described real estate, situated in the county of Macon and state of Missouri to wit: The northeast quarter (¼), of the northeast quarter (¼), and the southeast quarter, of the northeast quarter and the south half of the southwest quarter of the northeast quarter of section twenty-four (24), township sixty-one (61), range fifteen (15), Adair county, Missouri, containing in all one hundred acres more or less. Hereby covenanting that she will warrant and defend the title to said premises against the claims of every person whomsoever—except all taxes that are due or may become due. It is also agreed and understood that the said above described land shall not be subject to or used in any way as security for notes or other debts by said parties of the second part. It is agreed to and a part of the consideration herein that the said J. A. Coulson and W. B. Coulson, the said parties of the second part, shall each of them contribute and pay over to my daughter, Myrtle Bridges Coulson, thirty dollars each cash in hand, each and every year from and after the death of the grantor herein and each of the said parties of the second part shall continue to pay said amount, each, yearly to said Myrtle Bridges Coulson, until she shall become twenty-one years of age—should said Myrtle Bridges Coulson attain such age —but should the said J. A. Coulson and W. B. Coulson, the said parties of the second part, die prior to the said Myrtle Bridges Coulson, or should the said Myrtle Bridges Coulson survive the said J. A. Coulson and W. B. Coulson, or either of them, then all of the above described lands shall be vested absolutely in Myrtle Bridges Coulson. It is further agreed and understood that all of the above described lands shall remain in full and absolute charge and control of the said Margaret A. Coulson, said party of the first part, during all of her natural life. Should the said J. A. Coulson and W. B. Coulson, or either of them, fail or refuse to comply with any or all of the provisions and agreements of the foregoing, they or either of them shall forfeit all right, title and interest in and to the above described real estate and the title to the same shall be vested in said Myrtle Bridges Coulson. Witness my hand this day of ____ A. D., 190_. Margaret A. Coulson. [Seal.]" It was duly acknowledged on May 1st, and recorded...