Davis v. Green

• Decision Date: 15 December 1890
• Citation: 14 S.W. 876,102 Mo. 170
• Parties: Davis, Appellant, v. Green et al
• Court: Missouri Supreme Court

14 S.W. 876

102 Mo. 170

Davis, Appellant, v. Green et al

Supreme Court of Missouri

December 15, 1890

Appeal from Audrain Circuit Court. -- Hon. E. M. Hughes, Judge.

Reversed and remanded.

W. W Fry for appellant.

(1) The right of the husband during coverture to make corporeal seizin is sufficient to entitle the widow to dower without actual seizure. It is of no effect whether Davis had actual seizin or not. Gentry v. Woodson, 10 Mo. 224; Warren v. Williams, 25 Mo.App. 22; R. S., secs 2186, 2207. (2) Williams' answer in the Crump case and the testimony of the witness, Duncan, was hearsay and incompetent. Greenl. Ev., sec. 90. It was a declaration of a third party and not admissible for any purpose. Declarations touching the title to land are inadmissible to impair the title of others. Hambright v. Brockman, 59 Mo. 52; Grady v. McCorkle, 57 Mo. 172; Williams v Courtney, 77 Mo. 587. Declarations of a party not in possession are valueless and inadmissible. Gordon v. Ritenour, 87 Mo. 59; Weinrich v. Porter, 47 Mo. 293; Albert v. Besel, 88 Mo. 154. After the husband has disposed of his title and is out of possession his declarations are those of a stranger. Greenl. Ev., sec. 109. (3) The widow is entitled to dower in the lands which her husband held under an inchoate title, although he may have conveyed it prior to the confirmation. Thomas v. Hesse, 34 Mo. 13. If Davis did hold the land in trust for Williams, Williams having failed to enforce the trust during the life of Davis, the widow has dower in the whole of it. Thomas v. Hesse, supra; Duke v. Brandt, 51 Mo. 221. (4) The relation of trustee and cestui que trust to create a resulting trust must result from the facts as they exist at the time of the purchase, and cannot be created by subsequent occurrences. Kelly v. Johnson, 28 Mo. 249; Perry on Trust, sec. 133. If Williams was on the Davis notes for the deferred payments, payment of the notes by Williams subsequent to the purchase and the deed of Davis did not create a resulting trust. (5) If Williams had a vendor's lien he did not enforce it by sale, and it did not affect plaintiff's dower. Duke v. Brandt, supra; Thomas v. Hesse, 34 Mo. 13. (6) On defendant's theory of a resulting trust, plaintiff has dower in half of the land. Bowen v. McKean, 82 Mo. 598; Shaw v. Shaw, 86 Mo. 598; Kelly v. Johnson, 28 Mo. 249. (7) Resulting trusts must not be declared upon doubtful evidence or on a preponderance of evidence. There should be no room for a reasonable doubt. Allen v. Logan, 96 Mo. 601; Adams v. Burns, 96 Mo. 363; Johnson v. Quarles, 46 Mo. 424.

Duncan & Jesse for respondents.

Davis had not such seizin as would at common law entitle his wife to dower. He had neither deed nor possession during coverture. 1 Washburn Real Property, 215; 1 Scrib. Dower, 249, et seq. The purchase money was never paid by plaintiff's husband, and no one was seized to his use, and he had no such seizin as would entitle plaintiff to dower under section 2186. Worsham v. Callison, 49 Mo. 207; Duke v. Brandt, 51 Mo. 223. The burden is on plaintiff to prove seizin, and there was no evidence showing that plaintiff's husband was seized prior to the date of the sale under which Williams bought. Gentry v. Woodson, 10 Mo. 225. The sheriff's deed to Williams related back to date of sale. Shumate v. Reavis, 49 Mo. 333. The transfer by sheriff's sale and deed of Davis' equitable interest to Williams defeated plaintiff's inchoate right of dower. Worsham v. Callison, 49 Mo. 207; Duke v. Brandt, 51 Mo. 223. The declarations of Davis that he only held the title in trust for Williams were admissible against plaintiff, who claimed through him. Van Duyne v. Thayre, 14 Wend. 233; Johnson v. Quarrles, 46 Mo. 423; Ringo v. Richardson, 53 Mo. 385. If Williams paid Davis part of the purchase price under the trust agreement between them, then Williams retained a lien on the land for the amount so paid, and plaintiff acquired no right to dower in the land, the purchase money not being paid. Edmonston v. Phillips, 73 Mo. 59; Sweet v. Jeffries, 48 Mo. 279; Bennett v. Shipley, 82 Mo. 453.

Robert Darwin Ray, C. J. Barclay, J., specially, concurring as stated in Davis v. Evans, ante, p. 164.

OPINION

Robert Darwin Ray, C. J.

-- The plaintiff, who is the widow of Silas W. Davis, deceased, brought this action in 1887 to have dower admeasured and set off to her in the lands described in the petition, being the northeast quarter of the southwest quarter of section 12, township 50, range 9, west. On April 26, 1860, Silas Davis, then being the husband of plaintiff, purchased the land in dispute with others, at a partition sale, in a suit, by the heirs of Wm. Sims entitled "Evans et al. v. Sims et al.," for the sum of $ 800, one-fifth cash, and balance in one and two years, with interest at ten per cent. from date of sale. The sheriff's report of sale showing collection of purchase money and interest was filed April 29, 1863, the sheriff's deed was executed and delivered to said Davis, May 2, 1863, and was put on record, May 19, 1863. Said Davis died in July, 1886, without ever being, at any time, in the actual possession of the land or any part thereof.

April 29, 1862, judgment was recovered in the circuit court of Audrain county against said Silas Davis and C. C. Ricketts in favor of one Hubble, execution issued thereon in January, 1863, and levied on the land March 6, 1863, and at a sale of the land, had under said execution, May 1, 1863, Henry Williams became the purchaser and obtained a sheriff's deed therefor dated May 4, 1863. Williams took possession, date of possession not given, under his said purchase, and defendants claim under him, by a regular chain of title.

Mr. Duncan, attorney for defendants herein, was called as a witness for defendants and stated, that, as attorney for one Crump, he recovered a judgment against said Davis in 1867 and had the land sold under execution to Crump, and that afterwards, in 1868 or 1869, he instituted a suit in ejectment for said Crump against one Hutchens, who was at that time in possession of this land, and that said Henry Williams was, upon his own motion, made a party defendant in the Crump suit, and that in 1869 said defendants, Hutchens and Williams, filed their joint answer therein.

Here the witness was asked what, if any, conversation he had with S.W. Davis, about whose money paid for this land in dispute, in the purchase of the same, at the Sims partition sale in 1859. To this question, and the evidence called for, plaintiff objected, and to all evidence in regard to the Crump case, and to testimony of witnesses, as to any conversation with Davis in 1868, as called for, because plaintiff was not bound by any statement of Davis therein; that neither plaintiff, nor her husband, were parties to said suit, and plaintiff was not bound by said suit, or any statement of Davis in regard to it; that the oral testimony offered was not admissible against the record in the partition suit, and the sheriff's deed to Davis, especially after the lapse of nearly twenty years; that the evidence called for was hearsay, incompetent, irrelevant and immaterial. The court overruled plaintiff's objection and admitted the evidence, and plaintiff excepted.

The witness Duncan continuing said: "After the answer was filed, I called on S.W. Davis to know about it, as I expected to use him as a witness in the Crump case. This was in 1868. I read the answer to Davis and he said the facts recited in it were true." Witness was asked what, if anything, Davis said as to the purchase of the land at the partition sale, and for whose benefit the purchase was made, who paid the purchase money, and all Davis said. Plaintiff objected on the ground that the declaration and admission of the husband were not binding on her, and incompetent. The objections were overruled and plaintiff excepted.

Said witness then continued his testimony as follows: "Davis told me that when the lands were sold in April, 1860, in the partition suit he, Davis, and Henry Williams were, by agreement, to buy the lands jointly and that he attended the sale and bid in the land for $ 800, one-fifth cash and the remainder in one and two years. He and Williams each paid one-half of the cash payment and gave their joint notes for the deferred payments and the sheriff made him, Davis, a deed to the lands May 2, 1863. He was unable to meet his part of the deferred payments, and Williams paid off the notes in July, 1863."

On cross-examination witness said: "I am attorney for the defendants in this case. I cannot give the exact language used in the conversation between Davis and myself, it has been so long ago. In fact, I had forgotten all about it, until, as attorney for defendants, in investigating this case, I found the papers. I ran across this answer in the Crump case, and, after reading that, I recollected of having this conversation with Davis. I do not remember when that conversation was. Davis died in 1886."

Defendants then offered to read in evidence the answer of Williams in the Crump ejectment suit, to which the plaintiff objected on the ground that it was irrelevant, incompetent and immaterial, and that neither Davis nor plaintiff were parties to this suit or bound by it. The objections were overruled and plaintiff excepted.

The answer read was filed July, 1868, entitled James Crump plaintiff, v. Warner Hutchens and Henry Williams, defendants. The answer is first a general denial, then a specific answer to the effect that, in 1860, said land was to be sold in the partition case of Evans et al. v. Martin J. Adams et al.; that Henry Williams agreed with S.W. Davis that Davis should attend said sale to bid in the land offered for sale, "for the joint use and benefit of...