Elliott v. Delaney
| Decision Date | 25 February 1909 |
| Citation | 116 S.W. 494,217 Mo. 14 |
| Parties | WILLIAM HENRY ELLIOTT v. JOSIAH DELANEY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Clinton Circuit Court. Hon. A. D. Burnes, Judge.
Reversed and remanded.
F. B Ellis for appellant.
(1) The lease was duly recorded and was notice to plaintiff. Laws 1887, p. 183; Geer v. Lumber Co., 134 Mo. 94; Pike v. Martindale, 91 Mo. 268. (2) If the lease gave defendant a right to purchase the fee from the heirs then plaintiff cannot recover. It was beyond the power of the grantor to alienate his right from him. It was a solemn instrument which all parties must respect. Elliott could not sneak in as he is attempting to do, and deprive him of this right. If defendant Delaney had a contract to purchase the land in question, from his deceased father, it is sufficient to defeat plaintiff's cause of action in ejectment. Harris v. Vineyard, 42 Mo. 568; Thompson v Henry, 85 Mo. 451; Sampson v. Mitchell, 125 Mo. 217; Sieberling, Miller & Co. v. Tipton, 113 Mo. 381. (3) Any equity is sufficient to defeat an action in ejectment. There are no equities in favor of one who brings ejectment. It is a legal action. He must stand on the cold and exact letter of the law. It is not so with the defendant; he can stand without any legal title, or, in fact, any title whatever, and unless plaintiff proves the title he is not entitled to recover. Defendant in ejectment may set up in his answer any and all equitable defenses, he cannot be circumscribed and limited to one to suit the notions of the plaintiff, as is contended by plaintiff in this action. Choteau v. Gibson, 76 Mo. 38; Butler v. Carpenter, 163 Mo. 597; Creech v. Childers, 156 Mo. 338. (4) There is no question of estoppel in this case as is contended by plaintiff. Plaintiff's interest has not in any way been affected by anything defendant has done. His title, if any, has not been affected, nor has the condition of defendant been enlarged or improved. The condition of the title is the same as when Mrs. Sterling died. The defendant could not be estopped unless plaintiff had been misled to his injury. If defendant, by word or act, had induced plaintiff to purchase the land from Mrs. Sterling, then there might be a question of estoppel, but he did not. He has always claimed under his contract. Bank v. Ragsdale, 171 Mo. 169; De Berry v. Wheeler, 128 Mo. 90; Spurlock v. Sproul, 72 Mo. 503. (5) There is another reason why a recovery cannot be had in this case. It is shown by the evidence that Mary A. Sterling had some six or seven heirs who have an interest at least in this contract. How can this court settle their equities when they are not before the court? Rogers v. Wolf, 104 Mo. 1; Railroad v. Hulton, 102 Mo. 45; Ebersole v. Rankin, 102 Mo. 88, 44 Mo.App. 240. (6) Plaintiff cannot in any case sue in ejectment and recover for the market value of the lands or tenements. No party can recover on a different cause of action than that alleged by him. He cannot sue upon one cause of action and recover upon another. Henry Co. v. Bank, 208 Mo. 209; Caldwell v. Ryan, 210 Mo. 17. (7) A suit in ejectment is a plain action at law. Gray v. Payne, 34 Mo. 203; Magwire v. Taylor, 47 Mo. 115.
E. C. Hall for respondent.
(1) The abstract of the record proper offered by appellant is correct. The remainder of the abstract is unauthorized for the reasons: 1st. The first bill of exceptions, so called, was not approved and signed by the judge and not filed in time. 2d. Bill of exceptions No. 2, so called, was not filed. 3d. There is no bill of exceptions, and the judgment must be affirmed. Reno v. Fitz Jarrell, 163 Mo. 411; Cooper v. Maloney, 162 Mo. 684; Western Storage & Co. v. Glasner, 150 Mo. 426; Roush v. Cunningham, 163 Mo. 173; Wilson v. Railroad, 167 Mo. 323; State v. Beaty, 166 Mo. 581; Hayden v. Alkire Gro. Co., 88 Mo.App. 241; Hazell v. Clark, 89 Mo.App. 79; Hamilton-Brown Co. v. Williams, 91 Mo.App. 51; City ex rel. v. Deemar, 174 Mo. 122. (2) The record proper says that defendant filed an affidavit for an appeal, but there is no affidavit for appeal in the record, and this court has no jurisdiction of the case. State ex rel. v. Woodson, 128 Mo. 514; Railroad v. Powell, 104 Mo.App. 367; Peters v. Edge, 87 Mo.App. 284; Geising v. Schowengerdt, 24 Mo.App. 554. (3) If any error in the judgment was committed by the court it was in allowing defendant the right to buy the land; and that was done on defendant's own pleading. But plaintiff cannot complain because he has not appealed and defendant because he got what he asked for. Bushnell v. Ins. Co., 91 Mo.App. 523. (4) There was given by the instrument of lease a life tenancy or lease during the life of said Mary A. Delaney, and at her death the "said land to revert to and become the estate of said Mary A. Delaney." By this provision, defendant argues that, at the death of said Mary A. Delaney, the title of the land vested in the heirs of her and that during her lifetime she could not convey it. This claim is erroneous for the reasons: (a) The fee was not conveyed by said lease but remained in grantor. (b) As the fee remained in grantor, even if there had been a life estate instead of a tenancy simply, created by said lease, the remainder, even if limited to the heirs of grantor, or to her estate, would be void, because the fee was in grantor and there was at the time no heir or estate to take the remainder. 24 Am. and Eng. Ency. Law (2 Ed.), 398 and note 4; 2 Washburn on Real Prop. (3 Ed.), p. 685; 1 Ib., p. 51. (c) A deed from grantor to one for life, or per autre vie, which provides that the land shall revert to the heirs of the grantor, does not pass any title to the heirs and the grantor may convey the same by deed. 2 Wash., Real Prop. (3 Ed.), p. 686; 24 Am. and Eng. Ency. Law (2 Ed.), 421 and note 4; Alexander v. DeKermal, 31 Ky. 345; Whaym v. Davis, 66 S.W. 827. (5) The instrument pleaded by defendant and on which he relies solely is nothing more than a lease for a term during the life of the lessor with an option to purchase at the end. It being an option, must be exercised promptly and in time. 21 Am. and Eng. Ency. Law (2 Ed.), 930, 931; Mason v. Payne, 47 Mo. 517. His acceptance of the option must have been not only prompt and on time, but unconditional and certain. Bruner v. Wheaton, 46 Mo. 363. (6) The option was not accepted at the end of the term, but, on the contrary, was repudiated by defendant. For the uncontradicted evidence shows that plaintiff called upon defendant after the death of Mary A. Sterling and asked him what he was going to do about that land and his option. He answered that he was not going to do anything, as the land belonged to him. And he followed that claim up by pleading his deed from said Mary Sterling made after the deed to plaintiff, and has never in any way accepted said option or told plaintiff that he would accept it and pay the reasonable value of said land, until and except by the amended answer which he has filed herein, in which he still maintains that he holds by a right superior to plaintiff. By this conduct defendant has forfeited any claim to such option. Pursley v. Good, 94 Mo.App. 389; Harwood v. Deimer, 41 Mo.App. 48.
Plaintiff sued in ejectment for eleven 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:
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 eleven 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 pa...
To continue reading
Request your trial