Dougherty v. Dougherty

• Decision Date: 29 May 1907
• Citation: 204 Mo. 228,102 S.W. 1099
• Parties: DOUGHERTY et al. v. DOUGHERTY et al.
• Court: Missouri Supreme Court

102 S.W. 1099

204 Mo. 228

DOUGHERTY et al. v. DOUGHERTY et al.

Supreme Court of Missouri, Division No. 1.

May 29, 1907.

1. POWERS—EXECUTION—POWER OF DEVISEE TO SELL.

A power, given by a will to a devisee for life, or during widowhood, to sell any of the property devised for the support of the devisee and children, is not a power to convey by deed of trust.

2. REFORMATION OF INSTRUMENTS—MUTUALITY OF MISTAKE.

Courts of equity will reform a deed where there is convincing proof of a mutual mistake.

3. SAME—EVIDENCE.

To show the mutuality of a mistake in a written instrument sufficient to authorize equity to reform it, the agreement preceding the written instrument must be shown.

4. SAME—MUTUALITY OF MISTAKE—PROOF.

Where the scrivener drawing a deed acted under the sole direction of the grantee therein, and in the absence of the grantor, his mistake was the mistake of the grantee, and was not a mutual mistake essential to warrant equity to reform the deed on the ground of mistake.

5. SAME—PLEADINGS—SUFFICIENCY.

A pleading, praying for the reformation of a deed on the ground of mistake, which alleges that the scrivener made a mistake in drawing the deed, is fatally bad for failing to aver that he acted under the directions of both parties, so as to show that the mistake was their mutual mistake.

6. DOWER—ESTABLISHMENT—STATUTES.

Where a case for the establishment of dower was tried in 1904, the court correctly calculated the dower interest in accordance with Act March 18, 1903 (Laws 1903, p. 167), notwithstanding the repeal of the act by Act April 8, 1905.

Appeal from Circuit Court, Knox County; Chas. D. Stewart, Judge.

Action by Dena Dougherty and others against B. J. Dougherty and others. From a judgment reforming a deed and awarding dower in favor of plaintiff Dena Dougherty; certain of the plaintiffs and defendants appeal. Affirmed in part, and reversed in part.

O. D. Jones, for plaintiffs. D. A. Rouner and L. F. Cottey, for defendants.

GRAVES, J.

John Dougherty, a resident of Edina, Knox county, Mo., departed this life in January, 1874. He owned at the date of his death lots 5, 8, 9, and 10 in block 5 in the original town, now city, of Edina. His heirs were Ellen Dougherty, widow, and four children, Bernard, Mary C., Catherine, and John A. S. Dougherty. The said John Dougherty left a will by which all this property was devised to the wife Ellen, for and during her natural life or widowhood, with discretionary power to sell any or all of said property for the support of herself and children. At her death or remarriage the remainder was to go to the four children in equal portions. The widow of John Dougherty died in 1884, but prior to her death had placed a deed of trust on all of her said property, except lot 5, to secure a note of $1,780.77, payable to one Linville. After her death, and after the expiration of 9 months thereafter, this deed of trust was foreclosed, and the land purchased by James Dougherty, a brother of John Dougherty, who had previously acquired the Linville note. The consideration in the trustee's deed being $2,000. May 9, 1898, three years after the trustee's sale, James Dougherty, by deed of quitclaim, for the expressed consideration of $5, conveyed the property to Mary C. Gangloff, formerly Mary C. Dougherty, and Catherine Dougherty. At the December term of the Knox county circuit court for the year 1900 Anthony Gangloff, husband of Mary C. Gangloff, formerly Mary C. Dougherty, procured judgment against John A. S. Dougherty in the sum of $917.81, debt, and $41.15, costs, for money due him personally from John A. S. Dougherty. In 1903 he caused execution to be issued on his judgment, and levy to be made on all the property owned by the father, John Dougherty, viz., lots, 5, 8, 9, and 10 of block 5 as described hereinbefore. At the sheriff's sale under such execution Anthony purchased said property the expressed consideration in the sheriff's deed being $100. On January 14, 1897, John A. S. Dougherty, joined therein by his wife, Dena, executed a quitclaim deed to Mary C. Gangloff and Catherine Dougherty, conveying to them all his right, title, and interest in and to lots 5, 8, 9, and 10 in block 6 original town, now city of Edina. It will be observed that the numbers of the lots are the same, but the block is 6 instead of 5, as in the description of the property owned by John Dougherty, deceased. This deed is one of the storm centers of the suit in this appeal involved. At the execution of this deed John A. S. Dougherty was living in Butte, Mont. Later John A. S. Dougherty returned with his family to Edina, Mo., and after a period of about three years from the date of his return, and on May 25, 1903, he instituted his suit in the circuit court of Knox county against Mary C. Gangloff, Catherine Dougherty, and Anthony R. Gangloff, in the first count of which he sought to have the deed of trust and trustee's deed, hereinabove mentioned, canceled, as also the deed from James Dougherty to defendants Mary C. Gangloff and Catherine Dougherty, and he also sought to have the sheriff's deed to Anthony R. Gangloff canceled, and asked the court to decree that he owned an undivided one-fourth interest in the said property. By second count he prayed for partition of the property, and that an accounting be had of the rents and profits. After the institution of this suit, John A. S. Dougherty died, and the suit was revived in the name of Dena Dougherty, his widow, and Antonia Dougherty, a minor, by O. D. Jones, guardian ad litem. An amended petition was filed, in which the necessary changes were made to meet the conditions of things. To this petition Mary C. Gangloff and Catherine Dougherty answered by denying that John A. S. Dougherty at his death owned any interest in said property, and further plead in their answer the quitclaim deed from John A. S. Dougherty and wife, Dena, to them, as above mentioned, and asked for the reformation of said deed, so that it would read "block 5" instead of "block 6." Some question is made as to the sufficiency of this answer upon this point, which will be noticed later. Anthony R. Gangloff by answer denied that John A. S. Dougherty had any interest in the property at the time of his death, and averred that he acquired all of his interest at the sheriff's sale, and by the sheriff's deed, hereinabove described. Reply was a general denial.

By its judgment the court refused to reform said deed as to Dena Dougherty, and found that she was entitled to dower in one-fourth of all the property, and that the value of the property was $5,500, and that her damages for deforcement of her dower since the death of her husband was $60, and that she was entitled to recover from the defendants the sum of $527.25 which included her dower and the $60 damages. The court also found and adjudged the monthly rents and profits to be $40 per month. The court reformed this quitclaim deed as to the minor plaintiff, Antonio Dougherty, so as to make said deed of quitclaim from John A. S. Dougherty to Mary C. Gangloff and Catherine Dougherty to read "block 5" instead of "block 6." The court also canceled the deed of trust, and trustee's deed thereunder, as well as the quitclaim deed from James Dougherty to the said Mary C. Gangloff and Catherine Dougherty. No action was taken by the court as to the sheriff's deed, as the court in the judgment said the interest of John A. S. Dougherty had previously passed by the quitclaim deed. The petition of the infant son of John A. S. Dougherty, Antonio, was dismissed. In the trial it was admitted that Bernard Dougherty had conveyed his interest to his sister Mary C. Gangloff and Catherine Dougherty. The $527.25 to Dena Dougherty was made a lien upon the land, the court having found that dower could not be set off in kind. From this judgment, the minor, Antonio, appealed, as did also the defendants, so that we have cross-appeals. Further portions of the pleadings, evidence, and judgment will be noticed in the opinion, but this substantially states the case and the contentions.

1. The trial court committed no error in canceling the deed of trust to Linville, executed by the widow of John Dougherty. Nor was there error in canceling the trustee's deed under said deed of trust and the quitclaim deed from James Dougherty, the purchaser at the trustee's sale, to Mary C. Gangloff and Catherine Dougherty. The power given to the widow by the will of John Dougherty was a power to sell and not a power to mortgage or otherwise incumber the property. The entire context of the clause in the will granting the power will lend no aid to a contrary view. The general rule is that a power to sell does not give life to a mortgage or deed of trust executed under such power. In other words, a power to sell is not a power to mortgage or to convey by deed of trust. Price v. Courtney, 87 Mo. 387, 56 Am. Rep. 453; Garland v. Smith, 164 Mo. 1, 64 S. W. 188; Am. & Eng. Ency. of Law (1st Ed.) p. 940, and cases cited. There are some cases where a contrary doctrine is expressed, the opinions resting upon the peculiar wording of the clause granting the power, and the peculiar purpose of the grant, but there is nothing in this case which would even bring it within the doctrine of these cases. Thus it follows that the judgment of the trial court is so far correct.

2. We next reach that portion of the judgment of the trial court wherein the deed from John A. S. Dougherty and Dena Dougherty, his wife, to Mary C. Gangloff and Catherine Dougherty was reformed. By this judgment the deed was reformed as to Antonio Dougherty, the infant child of John A. S. Dougherty, but not as to Dena Dougherty, the widow. From this judgment both sides appeal; the plaintiffs contending that there should be no reformation of the deed, and the defendants claiming that there should have been a reformation as to the widow as well as the heir. The question then is, should this deed have been...