Davis v. Evans

• Decision Date: 15 December 1890
• Citation: 102 Mo. 164,14 S.W. 875
• Parties: DAVIS v. EVANS <I>et al.</I>
• Court: Missouri Supreme Court

14 S.W. 875

102 Mo. 164

DAVIS v. EVANS et al.

Supreme Court of Missouri.

December 15, 1890.

RIGHT TO DOWER — EVIDENCE — SUBROGATION.

1. In a suit by a widow for dower, evidence cannot be received against her of admissions that he held the land in trust for another made by her husband after it had been sold on execution against him, and when he had no seisin in fact nor constructive possession, and no estate in law or equity, in the land.

2. Under an answer setting up a trust in land resulting from payment of the purchase money, defendant cannot be subrogated to the vendor's lien on proof that he and the grantee named in the deed each paid one-half the cash payment, and gave their notes for the balance, all of which were paid by defendant, the grantee having failed to pay his part.

Appeal from circuit court, Audrain county: E. M. HUGHES, Judge.

This action is to enforce the claim of plaintiff to dower in certain land as the widow of S. W. Davis, who died in 1886. It seems that, while married, the latter bid in the land at a partition sale in 1860, and a deed therefor was duly made to him as purchaser, thereafter, May 2d, 1863, by the sheriff, reciting full payment of the purchase money by him. Meanwhile, Mr. Williams, through whom defendants claim, had purchased the interest of Mr. Davis in the property by a sale on execution May 1, 1863, receiving a deed therefor May 4, 1863, and so dated, under a judgment rendered in April, 1862. Mr. Davis never was in actual possession of the land. Defendants' evidence (assuming it competent) tends further to show that Mr. Davis, in the year 1868, admitted having purchased the land at the partition sale, for the use of himself and Mr. Williams; that each paid one-half of the cash payment, and their joint notes were given for the deferred payments, which were met by Williams, Davis paying no part thereof, and never having refunded to Williams any of the amount paid by him. Plaintiff objected to this evidence, on the ground that she was not bound by the admissions of her husband made at that time; but the court overruled the objection, and an exception was duly saved. Except these admissions of S. W. Davis, there was no evidence that the land was acquired by Davis for himself and Williams; nor that Williams paid the notes given for the purchase price. The case was tried by the court without a jury, and a judgment rendered for defendants, from which plaintiff, in due form, took this appeal. The material facts are undisputed. The opinion states such other matters as are necessary to a full understanding of the case.

W. W. Fry, for appellant. Geo. B. Macfarlane, for respondents.

BARCLAY, J., (after stating the facts as above.)

It may be well at the outset to refer for a moment to the pleadings which appear to simplify some of the questions discussed by the learned counsel in their briefs. Defendant's answer states, among other things, that in 1860 the deed, purporting to convey the land in controversy, was executed and delivered to...