Fanning v. Doan

• Citation: 139 Mo. 392,41 S.W. 742
• Parties: FANNING v. DOAN.
• Decision Date: 25 May 1897
• Court: United States State Supreme Court of Missouri

41 S.W. 742

139 Mo. 392

FANNING v. DOAN.

Supreme Court of Missouri, Division No. 1.

May 25, 1897.

CONVEYANCE — MISTAKE — REFORMATION — EVIDENCE.

Defendant's husband in 1876, by deed in which she joined, conveyed land to his brother to hold in trust for defendant and her children by grantor. After the husband's death the brother, in 1877, conveyed to defendant "and her heirs" by said husband, "their heirs and assigns." Defendant and her three sons took exclusive possession of the land, sold part, and partitioned the rest among themselves. In 1893 one entitled by descent to the interest of a daughter of defendant and said husband, who had died after execution of the deed by the trustee, brought ejectment to recover an undivided one-fifth of the land set off to defendant. Defendant demurred on the ground that the deed vested an estate for life in her, with remainder in fee to the children; but a judgment sustaining the demurrer was reversed on appeal to the supreme court on the ground that the deed vested a fee simple in the defendant and the children as tenants in common, whereupon she filed an answer setting up that, prior to the conveyance to the brother, it had been agreed that he should convey to her for life, with remainder to the children who should survive her, and that the failure of the trustee so to convey was due to the mistake of the scrivener. The only evidence of mistake was the testimony of three witnesses as to their recollections concerning declarations said to have been made by the husband and brother 18 years before, and the testimony of the scrivener tended to support the deed as written. Held insufficient to establish the mistake so as to entitle defendant to reformation.

Appeal from circuit court, Grundy county; P. C. Stepp, Judge.

Action by John H. Fanning against Sarah A. Doan. From a judgment in favor of defendant, plaintiff appeals. Reversed.

A. H. Burkeholder and Geo. Hall & Son, for appellant. O. G. Bain and Harber & Knight, for respondent.

BRACE, J.

This is an action of ejectment to recover the possession of an undivided one-fifth of a tract of land in Grundy county, described in the petition. The undisputed facts in the case are that in the year 1861 the defendant, who was then a widow having children then and still living, by two former marriages, intermarried with one John Doan; that they lived together as husband and wife on the farm of said John, in said county, from that time until his death; that there were born to them of the marriage four children, John, Daniel, Deborah, and Reeves S.; that on the 6th of November, 1876, the said John Doan died, leaving the said Sarah, his widow, and her said children by him, surviving; that a short time prior to his death, to wit, on the 4th day of October, 1876, the said John Doan, Sr., by general warranty deed, in which his said wife joined, conveyed his said real estate, containing 720 acres, to his brother, Benajah Doan, of Muskingum county, Ohio, for the expressed consideration of $10,000; that in fact no consideration whatever was paid for said deed, but the title was so placed in the said Benajah to be by him held in trust for the benefit of the wife of the said John, Sr., and his said children by her; that on the 4th of October, 1877, the said Benajah Doan, for the consideration of $400, conveyed 40 acres of said land to one Cyrus Gates, of Grundy county, and afterwards, on the 5th day of March, 1878, the said Benajah, in execution of said trust, duly executed, acknowledged, and delivered the following deed for the remainder of said real estate, under which both parties claim: "Know all men by these presents that I, Benajah Doan, of the county of Muskingum, in the state of Ohio, for and in consideration of the sum of eight thousand ($8,000) dollars to me in hand paid by Sarah A. Doan and her heirs per John Doan, of the county of Grundy, state of Missouri, the receipt whereof I do hereby acknowledge, have remised, released, and forever quitclaimed, and by these presents do remise, release, and quitclaim, unto the said Sarah A. Doan and her heirs by John Doan, their heirs and assigns, forever, the following described premises, situate in the county of Grundy and the state of Missouri: All of the east half of the southeast quarter of section number twenty-two (22); the northeast quarter of the northwest quarter, the south half of the northwest quarter, the southwest quarter of the northeast quarter, the west half of the southwest quarter, and the northeast quarter of the southwest quarter, of section number twenty-six (26); the southeast quarter, the southeast quarter of the southwest quarter, the southeast quarter of the northwest quarter, and the south half of the northeast quarter of section number twenty-seven (27), — all in township number sixty-two (62), of range number twenty-four (24), containing, according to the government survey, six hundred and eighty acres, more or less, and all the estate, title, and interest of the said Benajah Doan, either in law or equity, of, in, and to said premises, together with all the privileges and appurtenances to the same belonging. In witness whereof I have hereunto set my hand and seal this 5th day of March, A. D. 1878. Benajah Doan. [Seal.]" The defendant administered the estate of her deceased husband, and continued to reside with the children on the premises. Afterwards, in the month of July, 1881, the said Deborah, daughter as aforesaid of the said John and Sarah Doan, intermarried with the plaintiff, and in November, 1882, thereafter, died intestate, leaving as her sole heir her son, John H. Fanning, born of said marriage. Afterwards, to wit, on the 3d day of August, 1883, the said John H. Fanning also died, leaving the plaintiff, his father, his only heir at law. After the death of this grandchild the defendant and her said three sons, John, Daniel, and Reeves, took exclusive possession of said real estate. On the 18th of October, 1884, they sold and conveyed by warranty deed about 50 acres thereof to one Eli Hotchkiss, and afterwards divided the remainder among themselves, each taking possession of the lands set off to her or him, and receiving a warranty deed therefor from the others; all of said deeds bearing date November 30, 1891. By such division the lands described in the petition, containing 194 acres, were thus set off and conveyed to the defendant, who took and now holds exclusive possession thereof. On the 19th of July, 1893, the plaintiff instituted this suit in the Grundy county circuit court to recover the one undivided fifth part of the premises so held by the defendant; claiming that as the sole heir of his said son, who was the sole heir of his mother, the said Deborah, under said deed to Benajah Doan, he was seised in fee simple of an undivided fifth part thereof as tenant in common with the defendant. To the petition the defendant interposed a demurrer; claiming that by said deed an estate for life in said lands was vested in the defendant, remainder in fee to her children by John Doan, and that the children or their heirs had no cause of action against the defendant, the life tenant, for the recovery of the possession thereof. The demurrer was sustained by the circuit court, and from the judgment thereon in favor of the defendant the plaintiff appealed to the supreme court, where the judgment of the circuit court was reversed and the cause remanded; the supreme court holding that by the deeds from Benajah Doan the title in fee simple to the premises conveyed was vested in the defendant and her said children by John Doan in common. Fanning v. Doan, 128 Mo. 330, 30 S. W. 1032. After the case was remanded, and on the 25th day of November, 1895, the defendant filed her answer, setting up as a defense to plaintiff's cause of action "that, prior to and at the time of making said conveyance by her and her said husband to said Benajah Doan, it was agreed and fully understood between them that said conveyance should be and was made to the said Benajah in trust for the purpose that the title in said premises, so far as then owned by defendant's said husband and this defendant, might, by said Benajah, be conveyed to this defendant for and during her natural life, with remainder to her children by John Doan that might survive her; that the said Benajah accepted the said trust, and, in his attempt to carry out and fully discharge same, made, executed, and delivered to defendant the deed and instrument aforesaid; that it was fully agreed and understood between the said Benajah and the said John Doan, during his life, and this defendant, at the time of the making of said conveyance by the said John to Benajah, as well as at the time of the making said conveyance by the said Benajah to her, that the said Benajah would and should convey to defendant the said premises for and during her natural life, with remainder therein to her children by John Doan that might survive her, and defendant says that if the instrument aforesaid fails to convey such estate to her, with remainder to her said children, it was by reason of a mistake, oversight, or neglect of the scrivener or writer thereof to write and make the same as requested, intended, and directed by the said Benajah," — and praying that said deed be so modified, changed, and reformed as to conform to the intention and agreement of the said John, Benajah, and the defendant, and carry out said trust, and convey to said defendant an estate in said premises for life, with remainder to her children by said John Doan who may survive her. On this plea issue was joined by reply. In support of the plea the defendant introduced the depositions of three witnesses, viz.: Jerome F. Fairly, Benajah D. Doan, and William P. Doan.

Fairly testified in chief that he was a farmer 50 years of age; was living on a farm of and working for John Doan in the summer of 1876, when Benajah Doan, the brother of John, and his nephew, Benajah D. Doan...