Frederick v. Missouri River, Ft. Scott & Gulf R.R. Co.

• Decision Date: 30 April 1884
• Parties: FREDERICK v. THE MISSOURI RIVER, FT. SCOTT & GULF RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

82 Mo. 402

FREDERICK

v.THE MISSOURI RIVER, FT. SCOTT & GULF RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

AFFIRMED

Wallace Pratt for appellant.

(1) The claim of respondent that the title to the south half of the acre did not pass to Mary Frederick by the sale upon the execution is untenable, even if we concede that the father's name was not “John” but simply Henry Frederick, and that the deed of the five acres from Joseph Henry was to the respondent by the name of “John H. Frederick.” The judgment was against the two upon a promissory note executed by them jointly, and was a lien upon the entire acre, whether the title was in the father as to the whole, or in him as to the north half only, and in the son as to the south half. (2) Whatever may be the effect of the execution sale and the deed to Mary A. Frederick, the respondent is equitably estopped from asserting any claim to the property in question as against the appellant. Stows v. Barker, 6 John. Ch. 166; Wood v. Wilson, 37 Pa. St. 379; Chapman v. Chapman, 59 Pa. St. 214; Morgan v. Railroad Co., 96 U. S. 716; Dickerson v. Colgrove, 100 U. S. 578; Kirk v. Hamilton, 102 U. S. 68; Collins v. Rogers, 63 Mo. 515; Evans v. Snyder, 64 Mo. 516; Kelly v. Hunt, 74 Mo. 561. (3) The respondent has twice knowingly received the proceeds of a sale for full value of the premises sued for, still retains these proceeds, and now wants the property itself. 1st, The proceeds of the execution sale of the acre, one-half of which he claims belonged to himself, were applied to the payment of the damages, interest and costs, of judgment against himself and his father, one-half of which he was equitably bound to pay. 2nd, Of the four thousand dollars, proceeds of the sale to Joy for the appellant, his mother had at the time of her death the two houses and lots purchased at a cost of $1,950, and $550 in money, the balance having been expended by her for her support. These houses and lots, and the money, aggregating more than his half of the proceeds of the sale, the respondent as we have already shown applied to his own use, and still retains the proceeds. Austin v. Loring, 63 Mo. 19; Evans v. Snyder, 64. Mo. 516. (4) The record in this case inevitably leads to the conclusion that for some unexplained reason, the legal title to the five acres purchased by the respondent from Joseph Henry, in 1856, was purposely taken in the name of the father, “John H. Frederick.” (5) The sheriff's deed to Mary A. Frederick, recites a levy and sale of the land. But the granting part of the deed is of the right, title, interest and estate of Henry Frederick. No such granting clause was necessary, and it has no effect. 1 R. S. 1855, p. 748, § 57; 1 R. S. 1879, p. 401, § 2392. It is otherwise in case of sale of personalty, where a bill of sale is made. 1 R. S. 1855, pp. 747, 748, § 53; 1 R. S. 1879, p. 400, § 2388. Also in case of deeds of real estate by administrators. 1 R. S. 1855, p. 147, § 35; 1 R. S. 1879, p. 79, § 169. And in case of deeds of realty by curator and guardian. 1 R. S. 1879, p. 435, § 2590; Freeman on Ex. §§ 324, 325.

Gage, Ladd & Small for respondent.

The history of the very title the appellant purchased showed that Henry and John H. Frederick were not the same person. The middle initial of a name in a deed, when the first and last names are given in full, is not a material part of the name, and a mistake in that letter is not a material mistake. Phillips v. Evans, 64 Mo. 23; Orme v. Shephard, 7 Mo. 606; Franklin v. Talmage, 5 Johns. 84. The failure of respondent to assert his title and claim his property from the time of the marshal's sale to the bringing of of this suit, whether the state of the title was known to him or not, constitute no estoppel against him. He had ten years under the statute within which to bring his action. The conduct of respondent when informed by Balis of his negotiations with Mary A. Frederick for the purchase of the property, will not estop him from claiming it. Silence will estop only when the party knows the fact which he ought to speak and the circumstances are such that his failure to speak is in morals and in conscience a fraud. Henshaw v. Bissell, 18 Wall. 255; Robinson v. Justice, 2. P. & W. (Pa.) 19; Brewer v. Railroad Co., 5 Met. 484; Chapman v. Chapman, 59 Pa. St. 214; Delaplaine v. Hitchcock, 6 Hill (N. Y.) 14; Smith v. Hutchinson, 61 Mo. 83; Taylor v. Zepp, 14 Mo. 482; Garhart v. Finney, 40 Mo. 462; Rice v. Bunce, 49 Mo. 235; 31 Pa. St. 334; 14 Cal. 368; Acton v. Dooley, 74 Mo. 69; Bigelow on Estop., (3 Ed.) 504. The appellant did not make lasting or valuable improvements upon the property before suit was brought. Besides respondent is not shown to have known either of the improvements or his title when the suit was brought. The fifty feet purchased by respondent from his mother is no part of the tract purchased by appellant. The acceptance of a deed from his mother would not estop respondent as against her to deny the title, much less would it work an estoppel in favor of a stranger.

L. Traber also for respondent.

There is no evidence that respondent ever claimed and held out that his mother was the owner of the premises in question. It could not have been done by his silence in ignorance of his rights. Bigelow on Estop., (3 Ed.) 497, 499; Rice v. Bunce, 49 Mo. 325; Merrills v. Phelps, 34 Conn. 109; Taylor v. Ety, 25 Conn. 250. As to appellant's third defense: it is true that respondent knew of the contemplated sale of the land in question by his mother to Joy, but it is equally true that from and after the sale by the marshal to his mother, until within a short time before the commencement of this suit, he was ignorant of his rights, and the true state of his title to the premises in question, and being so, for that reason did not make them known, and hence cannot be estopped. Smith v. Hutchinson, 61 Mo. 83, 87; Bales v. Perry, 51 Mo. 449; Bigelow on Estop., (3 Ed.) 319, note 5; Knouf v. Thompson, 16 Pa. St. 357, 364. “It is not enough to raise an estoppel that there was an opportunity to speak, which was not embraced, nor is any duty generated by the mere fact that a man is aware that some one may act as to his prejudice if the true state of things is not disclosed.” Bigelow on Estop., (3 Ed.) 503; Viele v. Johnson, 82 N. Y. 32. “Silence without knowledge works no estoppel.” Acton v. Dooley, 74 Mo. 63; Viele v. Judson, 83 N. Y. 40; Horn v. Cole, 51 N. H. 287; Slevins v. Demit, 51 N. H. 324; Gregg v. Von Phul, 1 Wall. 280. Hill v. Eply, 31 Pa. St. 331; Chapman v. Chapman, 59 Pa. St. 214; Picard v. Sears, 6 Ad. & Ell. 469; Gregg v. Wells, 10 Ad. & Ell. 90. There is no estoppel against respondent on the other grounds urged by appellant.

RAY, J.

We gather from the record in this cause, that on July 24, 1851, A. B. Canville, by deed of that date, conveyed to Henry Frederick, the father of respondent, forty by forty poles (10 acres) in the southern part of the east one-half of the northwest quarter of section 6, township 49, range 33, Jackson county, Missouri. The respondent, John B. Frederick, on March 10th, 1856, purchased from Joseph Henry five acres of land, twenty rods north and south and forty rods east and west, in the southeast part of the east half of the northwest quarter of section 6, township 49, range 33, in Kansas City, and lying south and adjacent to ten acres then owned and occupied by his father, with whom the respondent at that time lived. The deed from Joseph Henry for the five acres, so purchased by John B. Frederick, was taken in the name “John H. Frederick.” The description in said deed was as follows: The south part of the east one-half of northwest quarter section 6, township 49, range 33, containing five acres more or less, bounded as follows: Beginning at the southeast corner of said east one half, thence north twenty poles, more or less to Henry Frederick's southeast corner, thence west with Frederick's line forty poles, thence south twenty poles, thence east forty poles to the place of beginning.

It seems that in 1857 the Fredericks sold to Ulysses Turner and others, fourteen acres of the fifteen, leaving one acre unsold, one-half of which was part of the ten acres originally owned and occupied by the father, and the other half of the five acres so purchased by the son from Joseph Henry. Said deed begins thus: “Know all men by these presents, that we, Henry Frederick and Mary A. Frederick, his wife, and John H. Frederick, son of the said Henry, and Mary Frederick, of the county of Jackson, State of Missouri,” etc. In 1862 a judgment was recovered in the Kansas City court of common pleas by Theodore Etue, against John B. Frederick, the respondent, and Henry Frederick, his father, for $210 and costs, upon a promissory note theretofore made by them, and upon the same an execution was issued January 30, 1863, and levied upon the one acre left of the fifteen after said sale and conveyance of the fourteen acres to Turner and others. Said levy was made on the acre “as the property of Henry Frederick.” In the granting part of the deed the marshal described the property as, “all the right, title and estate of the said Henry Frederick in and to the real estate above mentioned.” This acre, so levied upon, was afterwards, on May 25, 1865, sold under the execution by the marshal of said court to Mary A. Frederick, the mother of respondent, for the sum of $365, and deed made to her accordingly. In July, 1865, the father died, leaving a last will and testament, signed with the name John Henry Frederick, whereby he gave to the son $10, and devised all the rest of his property to his wife, Mary A. Frederick.

It seems that shortly after the execution sale to his mother, John B. Frederick moved away from the property in question to Wyandotte county, Kansas, leaving her in sole possession, and from that time till about the time of the commencement...