Dameron v. Jameson

• Decision Date: 31 October 1879
• Parties: DAMERON v. JAMESON, Appellant.
• Court: Missouri Supreme Court

71 Mo. 97

DAMERON

v.JAMESON, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from St. Louis Court of Appeals.

REVERSED.

Norton & Martin for appellant

McKee & McFarland for respondent.

HENRY, J.

The petition states that Ephraim Page died, leaving as his only heirs at law, three children, F. W. Page, Helen Page and Rosina A. Strange; that prior to his death, which occurred on the 11th day of May, 1859, Ephraim, without the knowledge or consent of his son, F. W. Page, conveyed to him by deed, the land in controversy; that in October, 1873, F. W. Page, ignorant of the existence of the deed, and supposing that he owned but one third of the land and his two sisters each a third, contracted and sold to defendant one-third of said land; that after the making of this contract and before F. W. executed a deed, defendant first learned from an examination of the record of the existence of the deed of Ephraim Page to F. W. Page and had a deed prepared to himself, to be executed by F. W. who, still ignorant of the deed of his father, executed the deed so prepared by the defendant conveying the whole tract to defendant who now claims to be the exclusive owner; that, without any notice of the claim made by defendant, plaintiff purchased the interest of F. W. Page's two sisters in the land, and asks for a decree correcting the deed from F. W. to defendant and for judgment of partition.

A demurrer to the petition was overruled; and defendant's answer admits the execution of the deed from Ephraim to F. W.; denies that it was without the knowledge and consent of the latter; denies that on the 1st day of October, 1873, F. W. was ignorant of the existence of that deed, or believed he owned but one-third interest therein, and avers that F. W. made the conveyance to defendant, knowing that he owned the whole tract; admits that he discovered by the record that F. W. had a perfect title, and avers that defendant purchased in good faith; denies fraud; denies that plaintiff purchased the interest of the two sisters in good faith; denies that the sisters ever had any interest in the land, and alleges that plaintiffs knew, when they purchased, that defendant had the title to the entire tract; alleges that defendant owned the legal and equitable interest of the sisters by virtue of an agreement with them before plaintiffs purchased their interest. It further sets up a title under a tax deed of Elsberry & Bro., dated October 17th, 1869, also by deed from J. B. Allen and wife October 15th, 1873. Replication denies the averments in the answer.

At the spring term of the court, 1876, after hearing the evidence, the court, on plaintiff's motion, permitted them to amend their petition, so as to correspond with the proof, by inserting the following: “They further say that they have purchased also, and hold deed for the legal title to said land from F. W. Page.” To this action of the court defendant objected and excepted. He also filed a motion to require plaintiff to elect under which source of title they would claim, whether that from the sisters or that from F. W. Page. This was overruled, and defendant excepted. There was a finding and judgment as prayed for, from which defendant appealed to the St. Louis court of appeals, by which it was affirmed, and he has appealed to this court from that judgment.

The allegation of fraud on the part of defendant in procuring the deed from F. W. Page for the whole tract, is fully sustained by the testimony of Page, Dameron and Gibson, the justice of the peace who took the acknowledgment of the deed from F. W. to defendant, and we have, therefore, only to consider the questions of law presented by the record.

1. PARTITION: parties.

The deed from his father, duly recorded, purported to convey to F. W. Page the whole tract, but defendant acquired only one-third interest, that being what he contracted for, the...