Ebersole v. Rankin

• Decision Date: 19 January 1891
• Citation: 102 Mo. 488,15 S.W. 422
• Parties: EBERSOLE et al. v. RANKIN.
• Court: Missouri Supreme Court

15 S.W. 422

102 Mo. 488

EBERSOLE et al. v. RANKIN.

Supreme Court of Missouri, Division No. 1.

January 19, 1891.

EJECTMENT — PLEADING — EVIDENCE — BONA FIDE PURCHASER.

1. Under the Missouri practice in ejectment, which allows the plaintiffs, or any of them, to recover on any title they may prove, and the defendant to make legal or equitable defenses, it may be necessary to join both trustee and cestui que trust, and an amended petition is not demurrable which adds as a plaintiff one who is named as a trustee for the original plaintiffs in a deed under which they claim title.

2. Where plaintiffs and defendant claim under a common grantor it is unnecessary to go back of his title and pass on questions raised by objections to deeds through which title to him is traced.

3. In ejectment by the heirs of a decedent against a purchaser from decedent's son E., the latter testified that he executed a deed of the land to his father, who then lived in another state, on condition that the father should cancel an advancement charged against E., but he did not say what he did with the deed, to whom he sent it, or whether he sent it to any one. His brother testified that he saw the deed at his father's house; that it was a warranty deed, signed by E. and his wife; and that he did not know what had become of the deed. It appeared that on the death of the father the advancement charged to E. had not been canceled, and it was taken out of his share of the estate. Held, that the evidence was not sufficient to establish the delivery of the deed.

4. In such case parol evidence to prove the contents of the deed was not admissible, no foundation having been laid for its introduction.

5. The defendant claimed under a quitclaim deed from E., who held the legal title of record. E.'s father had conveyed to K. by a deed defectively acknowledged, taking a mortgage for the purchase money. After the death of the father, K. sued E. and the other heirs for specific performance, and obtained a decree vesting in him all their right, title, and interest as heirs at law of the father. The father's administrator then had the mortgage foreclosed, and the land was bid in in trust for the heirs. Held, that actual knowledge of the records of these proceedings did not charge the defendant with notice of the unrecorded deed from E. to his father; Rev. St. Mo. 1889, § 2420, providing that no conveyance of land should be valid except between the parties and such as have actual notice thereof, unless the same shall be deposited for record.

Appeal from circuit court, Atchison county; H. S. KELLY, Judge.

H. S. Kelly and L. D. Ramsey, for appellant. A. M. Hough, M. McKillop, and John D. Campbell, for respondents.

BRACE, J.

This is an action in ejectment for 240 acres of land in section 36, township 65, range 40, in Atchison county, instituted May 7, 1884, by petition in common form, by plaintiffs Christian A. Ebersole, Samuel Ebersole, C. K. Ebersole, Malinda Miller, Mary Rose, and Alice Liety, heirs at law of Christian Ebersole, deceased. Afterwards, on motion, Effie E. Ebersole, another heir, was made a party plaintiff. The case was tried before the court without a jury on an amended petition in which all of said heirs were plaintiffs, and by which Solomon K. Ebersole, as trustee of said heirs in one of the deeds in their chain of title, as was alleged, was made an additional plaintiff; and the answer of the defendant, which was a general denial, filed after his motion to strike out the amended petition and his demurrer thereto had been overruled. The court refused to give or consider any of the declarations of law asked for by the defendant, found for the plaintiffs for eight-ninths of the land, rendered judgment in their favor for the recovery thereof, for damages, and for monthly rents and profits, from which judgment the defendant appeals.

It appeared from the record evidence introduced by plaintiffs that James A. Dick, being seised in fee-simple, by warranty deed dated August 12, 1865, and recorded in said county December 15, 1865, conveyed the premises to Joseph W. Blackburn, who, by warranty deed dated October 25, 1865, and recorded August 23, 1866, conveyed the same to Christian A. Ebersole, who, by warranty deed dated December 27, 1865, and recorded August 23, 1866, conveyed the same to his brother, John W. Ebersole, who, by quitclaim deed dated June 19, 1880, and recorded July 5, 1880, conveyed the same to William A. Rankin, under whom the defendant in possession holds. Plaintiffs claim that they have acquired the title of said John W. Ebersole as against this quitclaim deed. The defendant claims title under said deed. The plaintiffs, to support their claim, introduced in evidence a warranty deed purporting to have been executed by Christian Ebersole, the father of the said John W., and to have been acknowledged by him before a justice of the peace in the state of Pennsylvania, dated August 28, 1869, and recorded in Atchison county May 6, 1870, conveying the premises to George S. King. The record of the proceedings in a suit instituted March 13, 1872, in the Atchison circuit court, by said King against the widow and heirs of Christian Ebersole, for the specific performance of a contract in writing, made by the said Christian Ebersole, deceased, to convey the lands in controversy to said King, alleges the payment to said deceased of $1,440 the consideration therefor, and the death of the said Christian. The contract charged upon in the petition was the foregoing deed, which was filed with the petition. The plaintiff then introduced a notice of lis pendens, filed for record the same day, and the final decree in said suit, vesting in the plaintiff all the rights, title, and interest of the defendants as heirs at law of the said Christian in the premises. The plaintiff then introduced in evidence a mortgage deed to the premises from George S. King et ux. to Christian A. Ebersole, dated August 28, 1869, acknowledged on the 5th of April, 1870, and on same day filed for record in Atchison county, to secure two promissory notes of the same date as the mortgage, payable one and two years after date, for the sum of $480 each, with 10 per cent. interest; the record of the proceedings in a suit instituted by Harvey Shires, public administrator, in charge of the estate of Christian Ebersole, deceased, at the January term, 1873, of the Atchison circuit court against said King to foreclose said mortgage: a decree of foreclosure in said suit, execution thereon, and a sheriff's deed reciting judgment, levy of execution, advertisement and sale, and conveying all the right, title, and interest of the said George S. King in said real estate to Solomon K. Ebersole, in trust for defendants. The plaintiffs then introduced parol testimony for the purpose of showing that the title of John W. Ebersole had passed from him to Christian Ebersole before the execution of the quitclaim deed to Rankin. So much thereof as bears upon that question is substantially as follows: John W. Ebersole testified that he bought the lands in controversy of Blackburn; that he and his brother, Christian A., were about to make a trade, and so had deed made to Christ.; that the trade failed, and afterwards Christian deeded to him; that he paid for the land with his own money; that afterwards, when he left home to go to Ohio, his father advanced him $1,000, and also advanced Christ, the same amount, and loaned him some money besides; that Christ. went to Kansas, and broke up; that his father thought Christ. owned the lands, and traded with him some way on what Christ. owed him; that he did not know this until his father sold to King; that Christ. had no interest in the land; that after his father sold to King, and was having trouble with him, his mother wrote to him, urging him to deed the land to his father; that he did so with the understanding that he was to have credit on his advancement receipt or have it destroyed; that his father died about that time. The receipt was not destroyed, and in the distribution of the estate he had to account for his advancement, and did not receive a cent for the land. Cyrus R. Ebersole testified that John W. made a deed to his father shortly before his death; that he carried the deed to the express office, while on his way to school, to express to Mr. House, the agent in Missouri who sold to King. "The deed was wrapped up. I did not see it." Christian A. Ebersole testified that after he had deeded the land in controversy to John, John traded it back to him for land in Ohio. That he sold the Missouri land to his father before obtaining a deed from John. That John made a deed to their father, instead of to him at his request. That he sold the land to his father before obtaining a deed from John, so he had John make deed directly to his father before his father's death. That at the time he traded the Ohio land to John he took from him a deed to the Missouri land, but it was never acknowledged. Thinks he gave it to his father. Thinks it was made in his name. Thinks he made a deed at that time to his father. That he did not know what had become of these deeds. Had never made any effort to find them. That either Samuel or Emily wrote to John after witness came back from Kansas, to have him make second deed. That he did not see letter. Saw this second deed at home. It was sent to his father. That the deed from John to his father was a warranty deed, and was received by his father through the mail before his father died. That he claims one-ninth of the land in controversy. The plaintiffs also introduced in evidence a written contract of retainer between John W. Ebersole and Lewis & Ramsay, dated May 20, 1880, by which the latter were employed as his attorneys in any suit that might be instituted by him to secure to him his interest in said lands, and eight letters from Mr. Lewis to the said John W., dated, respectively, March 31, April 21, May 6, May 20...