Devorse v. Snider

• Citation: 60 Mo. 235
• Parties: HARRIETT DEVORSE, Respondent, v. JOHN SNIDER, et al., Appellants.
• Decision Date: 31 May 1875
• Court: United States State Supreme Court of Missouri

60 Mo. 235

HARRIETT DEVORSE, Respondent,

v.JOHN SNIDER, et al., Appellants.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Holt Circuit Court.

T. H. Parrish, for Appellants.

I. The plaintiff cannot recover in this form of action. She could only sue at law for maintenance or possession, upon failure of John Devorse or his representatives to perform the conditions of the contract. (Moore vs. Wingate, 53 Mo. 339-441, and authorities cited; Messersmith vs. Messersmith, 22 Mo., 370; Livingston vs. Tompkins, 4 Johns. Ch. R., 415.)

If the facts set up in plaintiff's petition are true, i. e. if her husband died seized of the land, and she has not relinquished her dower therein, then her right to dower upon the death of her husband became absolute, and her right of action in law for the admeasurement thereof or for possession was complete, and her rights in the premises could not be aided or in any manner affected by a court of equity. (Wagn. Stat., 538, §§ 121-4, 127.)

II. Admitting that the deed was not delivered, and that John Devorse, in his life-time, entered upon condition which was never performed, then the title of the land was never vested in him and the title never passed, and the plaintiff had a complete and adequate remedy at law, for the admeasurement of dower. If she had a complete and adequate remedy at law, she cannot invoke the aid of a court of equity. See authorities above cited. (Maguire vs. Tyler, 47 Mo., 115-129; Peak vs. McLaughlin, 49 Mo., 162; Janney vs. Spedden, 38 Mo., 395.)

III. A grantor will not be permitted to put his grantee in possession of real estate under contract, stand by, and permit him to expend money in making improvements, receive the consideration for the land sold, and then treat the whole transaction as a nullity and recover back the land. (Grumley vs. Webb, 48 Mo., 562; Herriford vs. National Bk. of Mo., 53 Mo., 330; Taylor vs. Zepp, 14 Mo., 482; Newman vs. Hook, 37 Mo., 207; Bunce vs. Beck, 46 Mo., 327; St. Louis Gas Light Co. vs. St. Louis, 46 Mo., 121.)S. W. Collins, for Respondent.

I. As this action was brought by plaintiff to have the deed of Daniel Devorse and plaintiff, his wife, cancelled upon the ground of fraud, a court of equity, and no other, has jurisdiction.

II. The plaintiff had a right to bring her action in chancery to have this deed set aside so that she might afterwards proceed at law to have her dower assigned in the premises. (Davis vs. Davis, 5 Mo., 184; Tucker vs. Tucker, 32 Mo., 464; Teubner vs. Moller, 12 Mo., 528; 18 Mo., 389; 1 Sto. Eq. Jur., 628.)

III. An action for dower is not barred by statute of limitations. (See 32 Mo., p. 357.)

The husband, Daniel Devorse, had no right to deliver or acquiesce in the delivery of said deed when it was contrary to the stipulation upon which plaintiff had been induced to sign and acknowledge it.

SHERWOOD, Judge, delivered the opinion of the court.

The plaintiff is the widow of Daniel Devorse, deceased, and brought her action to set aside a deed to certain land.

This deed bears date and is acknowledged in January, 1853, recorded in 1859, is in the usual form of deeds with covenants of general warranty, and expresses a consideration of $200.

The petition charges that this deed was executed and acknowledged by the decedent and herself, and was made in pursuance of a parol contract between her husband and herself and John Devorse, now deceased, a son of her husband, that the son and grantee should, before the deed was delivered to him, enter into a bond to keep and maintain his father and herself during their natural lives; that the grantee never executed the bond, nor provided for their maintenance; that the deed was never delivered, but remained in the possession and control of the grantors, for a long time after its execution, and until the grantee secretly and fraudulently obtained possession thereof and placed the same on record without the knowledge or consent of either plaintiff or her husband; and that by reason of the premises she was entitled to dower in the land and the equitable relief prayed for.

The defendants are Mary Snider, widow of John Devorse, deceased, and John Snider, with whom she has intermarried since the death of her husband, and Mary and Levi Devorse, jr., minor children and only heirs at law of John Devorse, deceased.

The adult defendants answered, denying the chief allegations of the petition, as to the promised execution of the bond referred to, and as to the non-delivery of the deed, and as to its having been fraudulently obtained, etc.; and as a further defense it was alleged in the answer, that the deed in question was executed and delivered by Daniel Devorse, deceased, and plaintiff, to John Devorse, deceased, in consideration that the latter would discharge certain debts then owed by his father, and would support during their natural lives his father and plaintiff; that these agreements, as to the payment of the father's debts, had been fully complied with during the lifetime of John Devorse, deceased, who, while he lived, provided both his father and plaintiff a good and comfortable living; and after the death of John Devorse the plaintiff was offered both by Mary Snider and her present husband a like good and comfortable home and living, but she refused to accept the same.

Peaceable possession of the land under the deed for over the period prescribed by the statute of limitations by John Devorse, under whom defendants claimed, was also alleged.

The plaintiff denied the allegations of this answer in her reply.

A guardian adlitem, it would seem, was appointed for the infant defendants, but no answer on their behalf was filed; in fact, judgment by default was taken against them.

The court rendered a decree in favor of plaintiff, finding, “that said Daniel Devorse at the time said deed was made, was the owner in fee simple of said land, and plaintiff was induced to sign and acknowledge said deed upon the...