Freeland v. Williamson
| Decision Date | 18 May 1909 |
| Citation | 119 S.W. 560,220 Mo. 217 |
| Parties | JOANNIE FREELAND v. FRANCES WILLIAMSON et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Holt Circuit Court. -- Hon. Wm. C. Ellison, Judge.
Affirmed.
T. C Dungan and John W. Stokes for appellants.
(1) The court erred in making a finding and rendering a decree against all of the defendants, four of whom had not been served with summons or had other legal notice and not appearing in the action. Holt County v. Harmon, 59 Mo. 165; Jasper County v. Wadlow, 82 Mo. 172. (2) The court erred in permitting plaintiff to testify and her evidence was inadmissible because she was one of the original parties to the cause of action and the other party, her husband, is dead. Sec. 4652, R. S. 1899; Angell v Heater, 64 Mo. 142; Ring v. Jamison, 66 Mo 429; Curd v. Brown, 148 Mo. 95; Hach v. Rollins, 158 Mo. 190; Smith v. Turley, 9 S.E. 46. (3) Plaintiff was estopped to claim said land or the money of plaintiffs invested therein after she accepted the deeds for the Maitland property with the agreement and understanding with her husband that such property should be in lieu of, and in full satisfaction for her money used, if any, in buying said farm. Burdett v. May, 100 Mo. 18. (4) Plaintiff was precluded and estopped from claiming the land or the money by reason of her acquiescence and the long lapse of time after the alleged trust was created and her laches in not asserting her claim by instituting and prosecuting her action, upwards of thirty-five years having elapsed. Taylor v. Blair, 14 Mo. 440; Mouman v. Talbott, 55 Mo. 398; Wells v. Perry, 62 Mo. 576; Stevenson v. Saline Co., 65 Mo. 430; Joyce v. Growney, 154 Mo. 262; Smith v. Turley (W. Va.), 9 S.E. 46; Burdett v. May, 100 Mo. 18; Lenox v. Harrison, 88 Mo. 497. (5) Plaintiff's action was clearly barred by the Statutes of Limitation, more than ten years having elapsed since her alleged cause of action accrued and more than twenty-four years having elapsed since her said alleged cause of action accrued, and more than three years having elapsed after any disability she may have had, if any, had been removed. Hinkle v. Lovelace, 204 Mo. 227; Burdett v. May, 100 Mo. 18; Landis v. Saxton, 105 Mo. 481; Reed v. Palmer, 145 Mo. 341; Winn v. Riley, 151 Mo. 61.
R. B. Bridgeman, Charles F. Booher and John Kennish for respondent.
(1) Appellants complain that the court erred in rendering a decree against all of the defendants, four of whom had not been served with summons, or had other legal notice, and not appearing to the action. (a) Appellants do not challenge the service as to themselves. They appeared and filed an answer and participated in the trial of the cause. The question as to the sufficiency of the service of defendants, other than appellants, is not properly before this court for review. (b) If the non-resident defendants were not properly brought before the court and there was a defect of parties defendant, the defendants who appeared and answered waived such defect by not raising the question by demurrer or answer. R. S. 1899, secs. 598, 602; Horstkotte v. Menier, 50 Mo. 160. (2) Appellants were duly served, filed answer and contested plaintiff's suit, and it cannot now reasonably be said that they were prejudiced because another defendant was not properly served with process. Informalities and irregularities in the summons or process, or return thereof, as complained of in this case, are cured by said Sec. 672, R. S. 1899. Doan v. Boley, 38 Mo. 449; Hensford v. Hensford, 34 Mo.App. 292; Andrews v. Buckbee, 77 Mo. 428. (3) The cases cited by appellants in support of the proposition that a judgment is an entirety, and if void as to one is void as to all, applied to judgments in actions at law in cases of joint liability, and even in such cases the doctrine has been greatly modified since the time of the decisions cited by appellants. Stotler v. Railroad, 200 Mo. 149; Patterson v. Yancey, 97 Mo.App. 681; Christopher and Simpson, etc., Co. v. Kelly, 91 Mo.App. 100; Neenan v. St. Joseph, 126 Mo. 99; Bensieck v. Cook, 110 Mo. 173; State ex rel. v. Tate, 109 Mo. 265; St. Louis v. Lanigan, 97 Mo. 175; Bank v. Umrath, 55 Mo.App. 43; Dickerson v. Chrisman, 28 Mo. 134. (4) The court did not err in permitting plaintiff to testify as a witness in her own behalf. Scrutchfield v. Sauter, 119 Mo. 624. (5) There is no question of estoppel in this case. Scrutchfield v. Sauter, supra. As appellants claim title as heirs of John H. Freeland, deceased, it is apparent that the doctrine of estoppel is not applicable to the facts of this case. (6) The evidence clearly established a resulting trust in favor of plaintiff and against the heirs of John H. Freeland, deceased. Hudson v. Wright, 204 Mo. 412; Owings v. Wiggins, 133 Mo. 633; Scrutchfield v. Sauter, 119 Mo. 625; Seay v. Hesse, 123 Mo. 450; Hdw. Co. v. Horn, 146 Mo. 134; Palmer v. Alexander, 162 Mo. 127; McLeod v. Venable, 163 Mo. 541; Johnston v. Johnston, 173 Mo. 115. (7) Defendants failed to establish the defense of the Statute of Limitations. Buren v. Buren, 79 Mo. 542; Gray v. Yates, 67 Mo. 602; Sutton v. Casseleggi, 77 Mo. 397; Lindell Real Estate Co. v. Lindell, 142 Mo. 61; Mann v. Balfour, 187 Mo. 309.
This suit was instituted by the respondent, Joannie Freeland, widow of John H. Freeland, to establish a resulting trust in plaintiff in an eighty-acre tract of land described in the petition. The defendants are the eight children of the plaintiff and her said husband, together with the husbands of the married daughters. Two of the defendants, Aretha Swan and her husband, after the death of John Freeland, and before the institution of this suit, had conveyed the supposed undivided interest of the said Aretha Swan in the land in controversy by trust deed to J. E. Weller, as trustee, to secure a loan made to said Aretha Swan and her husband by Charles Chase, the beneficiary of said trust deed, and Weller and Chase were also joined as defendants.
The suit was brought in the circuit court of Holt county to the August term, 1905, and at the January term, 1906, of said court, the cause was tried and a decree rendered divesting defendants, except as to Weller and Chase, of all right, title and interest in and to said land and investing the same in plaintiff, as prayed in the petition.
Of the eight children and defendants only three daughters and their husbands contested the suit in the trial court, and these also alone appealed from the judgment and decree rendered, to this court.
It is alleged in the petition that the plaintiff and John H. Freeland, deceased, were married in the year 1862, and that eight children were born of the marriage, who, with the husbands of the married daughters, are named as defendants; that in the year 1869 plaintiff's father, Andrew Miller, for the purpose of providing the plaintiff, his daughter, with a home and means of support, sent the sum of six hundred dollars to one John Spencer with instructions to invest the same in land as a home and for the use and benefit of the plaintiff, his daughter; that pursuant to said instructions, the eighty-acre tract of land in controversy was purchased with five hundred and fifty dollars of said sum, but that by mistake and error, the deed was made conveying title to John H. Freeland, plaintiff's husband; that the said John H. Freeland paid no part of the purchase price of said land; that the said John H. Freeland with his family continued to occupy, use and enjoy the said land until his death, on the 20th day of January, 1903; that neither plaintiff nor her father, at any time, consented or gave authority that the title to said land should be vested in the said John H. Freeland, and that it was always understood by and between plaintiff and her said husband, during his lifetime, that the said land was the property of plaintiff and of right belonged to her.
It is also alleged that one of the said children, towit, Aretha Swan, and her husband, after the death of her father, conveyed her undivided interest to said land to James E. Weller, as trustee for Charles Chase, to secure a loan made by the latter to the said Aretha Swan and her husband. It is also alleged that the defendant, Grover Freeland, was a minor, and plaintiff prayed the court to appoint a guardian ad litem to protect and defend the interest of the said Grover Freeland in the suit.
The prayer of the petition was that the defendants be divested of all right, title and interest in the eighty-acre tract of land therein described, and that the same be vested in the plaintiff.
It is further alleged in the petition that three of the heirs, to-wit, Frances Williamson and John Williamson her husband, Laura McMillen and A. V. McMillen her husband, and Lucy Van Dyke and William Van Dyke were non-residents of the State, and prayed that a special summons of process be served on them, as provided by law. Affidavits of non-residence were filed with the petition as to said non-resident defendants.
Frances Williamson, Ella Craytor and Aretha Swan, and their respective husbands, filed separate answer containing several defenses:
1. Denying that plaintiff or her father furnished the money to purchase the land in controversy, or any part thereof, and denying that the deed to said land was by mistake made conveying title thereto to John H. Freeland, and alleging that the money and funds used in the purchase of said land were the property of and furnished by the said John H. Freeland.
2. That defendants Aretha Swan and her husband, conveyed the undivided interest of the said Aretha Swan to J. E. Weller, as trustee, to secure a loan made by Charles Chase to the said Aretha Swan, and that such...
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