Elliott v. Delaney

• Decision Date: 25 February 1909
• Citation: 116 S.W. 494,217 Mo. 14
• Parties: ELLIOTT v. DELANEY.
• Court: Missouri Supreme Court

116 S.W. 494

217 Mo. 14

ELLIOTT v. DELANEY.

Supreme Court of Missouri, Division No. 1.

February 25, 1909.

1. APPEAL AND ERROR (§ 511)—RECORD—BILL OF EXCEPTIONS—SHOWING MAKING AND FILING.

The abstract of record on page 9, after setting out the record entry showing the filing of a bill of exceptions in open court on September 27, 1906, recited "which bill of exceptions is as follows: [omitting caption]," followed by plaintiff's evidence and part of defendant's. On page 57 it appears that defendant abandoned part of his answer, and that it was agreed that evidence theretofore taken should be considered in so far as applicable, and what is called a "second bill of exceptions" begins, embracing defendant's evidence. On page 73 appears the judge's signature, with the usual recital making the bill a part of the record, dated September 27, 1906. Held, that it sufficiently appears that the whole thing was signed by the judge on that date, and filed as one bill of exceptions on that date, and the extraneous matter at page 57 would not justify a refusal to consider it.

2. APPEAL AND ERROR (§ 506)—JURISDICTION —INSUFFICIENCY OF ABSTRACT.

Where the abstract sets out a part of record entries made in the lower court, reciting that defendant filed an affidavit for an appeal, which was allowed, to the Supreme Court, and bond approved, and the first part of the record entries recites the overruling of motions for new trial and in arrest of judgment, and the latter part the leave to file a bill of exceptions, the fact that the abstract does not set out the affidavit for appeal does not rob the Supreme Court of jurisdiction.

3. JUDGMENT (§ 248)—CONFORMITY TO PLEADINGS.

In ejectment, where the answer was a general denial and a plea that defendant went into possession under a certain written instrument, and plaintiff was either entitled, under his petition and the general denial, to absolute possession, or if the written instrument pleaded gave defendant an option to purchase the lands from plaintiff for the reasonable value thereof, plaintiff was not entitled to possession, unless defendant should pay the assessed value within a reasonable time, a judgment not finding that plaintiff was entitled to possession, nor granting him a proper writ to secure possession, either upon condition or otherwise, though finding him to have title, but embracing a personal judgment against defendant with a special execution for collection thereof, was erroneous upon its face, as not in conformity to the pleadings.

4. PARTITION (§ 5)—PAROL PARTITION—VALIDITY—PARTIES TO AGREEMENT.

It is requisite to a valid parol partition between co-tenants that all those owning interests in the property be parties to the agreement and to the act of partition.

5. PARTITION (§ 5)—PAROL PARTITION—FORCE AND EFFECT.

Parol partitions are enforceable in equity, but the partition must be clearly proved.

6. PARTITION (§ 5)—PAROL PARTITION—EVIDENCE.

Evidence held not sufficient to show a parol partition of an estate.

7. LANDLORD AND TENANT (§ 24)—CREATION OF LEASEHOLD—FORM OF INSTRUMENT.

An instrument conveyed land from parents to son, the son to hold it to himself, his heirs, and assigns during the lifetime of the parents, and at their death the land to revert to and become the estate of the parents, or either of them, the son to have all the improvements by him placed thereon, or to be paid therefor their reasonable worth. Held, that a leasehold was created in the son until such time as the survivor of the parents died.

8. LANDLORD AND TENANT (§ 92)—LEASE—OPTION TO PURCHASE.

A conveyance, after granting a leasehold in land, to continue until the death of the survivor of the lessors, when it was to revert to the estate of the lessors, or one of them, provided that the lessee should have the full privilege of keeping the land in fee simple by paying the reasonable value thereof at the end of his term, or of delivering it up, reserving all improvements, at his option, and recited that the consideration had been paid. Held, that there was an executed option contract under which the lessee had the right to purchase at the death of the survivor of the two lessors.

9. LANDLORD AND TENANT (§ 92)—OPTION TO PURCHASE—QUESTION FOR JURY—REASONABLE TIME FOR EXERCISING OPTION.

Whether a person holding a leasehold interest in land, with the right to purchase or deliver it at a certain time, has disclaimed his option privileges, or whether he has within a reasonable time elected to purchase under the option contract, are questions of fact.

10. PERPETUITIES (§ 6) — RESTRICTIONS ON ALIENATION—AGREEMENT NOT TO SELL DURING LIFETIME.

While the general policy of the law is against unlimited restrictions on the right of alienation, an owner may agree, for a valuable consideration, that he will not sell his property during his lifetime, or that a certain person shall have the right to say whether or not he will take the property at the owner's death at a stipulated price.

11. VENDOR AND PURCHASER (§ 208)—TITLE OF VENDOR — OUTSTANDING OPTION CONTRACT.

The fact that a person has an option contract, giving him the privilege to purchase land at a certain time, does not deprive the one having title to the land of an interest therein which she can convey.

Appeal from Circuit Court, Clinton County; Alonzo D. Burner, Judge.

Action by William Henry Elliott against Josiah Delaney. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

F. B. Ellis, for appellant. E. C. Hall, for respondent.

GRAVES, J.

Plaintiff sued in ejectment for 11 acres of land in Clinton county. The petition is an ordinary petition in ejectment. The answer is, first, a general denial. By a second count the defendant pleads that he went into possession of the land in dispute under a certain written instrument, of date December 8, 1877, the material part of which reads: "To have and to hold unto the said Josiah Delaney, his heirs and assigns for and during the lifetime of the said Uriah Delaney and Mary A. Delaney, and at the death of said parties the said land to revert to and become the estate of said parties or either of them, the said Josiah to have all the improvements by him placed thereon or at his term hereof to be paid therefor their reasonable worth. The said Josiah Delaney to have the further privilege of taking and keeping said tract of land in fee simple by paying the reasonable value therefor, at the end of this term or to deliver it up, reserving all improvements at his discretion. Witness our hands and seals this 8th day of December, 1877. Uriah Delaney, Mary A. Delaney." He then avers that such instrument was placed of record April 1, 1883; that in pursuance thereof he not only entered into the possession of said land, but placed valuable improvements thereon, to the value of $300. By another paragraph, denominated a further and another answer, it is averred that Mary A. Delaney and Uriah Delaney are now dead; that after the death of Uriah Delaney, the wife, Mary A., married one Sterling, but thereafter, in the year 1904, departed this life; that there has been no administration upon her estate, and that she left heirs at law; that after the death of the said Mary A. this defendant has been ready and willing at all times to pay her heirs the reasonable value of said land.

The third defense is thus stated: "Defendant for further answer to plaintiff's petition says that on the 1st day of May, 1895, the said Mary A. Sterling and her husband conveyed to said plaintiff the said 11 acres of land described in plaintiff's petition, together with other lands; that at the time of the making of such deed, as aforesaid, the said Mary A. Sterling was without authority to make such deed, and could not, and did not, convey the title to plaintiff, and that said deed constitutes a cloud upon the title to such land." By the prayer of the answer it was asked that the deed described in that portion of the answer last above set out be canceled so far as it related to the land in dispute; that the heirs (who, by the way, are not parties to the suit) be required to specifically perform the contract, and upon their refusal that the court "adjudge and decree the title to plaintiff in accordance with the contract," and for all further just and proper relief. Reply is, first, a general denial, followed with this additional language: "Further replying, the plaintiffs say that if it is true the defendant had at one time the option mentioned in said lease contract, still the plaintiff avers that the defendant at the time and after the death of Mary A. Sterling declared that he would not accept the proposition to purchase said land under and by virtue of said option, but that he then and ever since that time asserted the absolute ownership of said land up and until after the trial of this case at the last term of this court at which time he filed his amended answer. Plaintiff says that defendant is estopped by his said conduct in repudiating said contract of option, and that if he had any rights thereunder, he had by such conduct waived the same. Wherefore the plaintiff renews his prayer of judgment." By the bill of exceptions No. 2, as it seems to be designated in print, it appears thus: "Defendant strikes out of his amended answer all of the first count after the general denial in regard to the improvements put on the real estate, and elects to stand upon the last count in the answer. It is agreed in open court, by and between the attorneys for plaintiff and defendant that the evidence heretofore taken in this case shall, as far as applicable, apply to this case also."

On April 19, 1906, the judgment appealed from was entered. The case was tried at the January term, or the evidence was taken at that term. The judgment seems to be the second judgment entered in the cause at the April term. Omitting the description of the land, the present judgment reads: "Now at this day comes the plaintiff by his...