Gilmore v. Thomas

• Decision Date: 28 June 1913
• Citation: 158 S.W. 577
• Parties: GILMORE v. THOMAS.
• Court: Missouri Supreme Court

158 S.W. 577

GILMORE v. THOMAS.

Supreme Court of Missouri, Division No. 2.

June 28, 1913.

Rehearing Denied July 9, 1913.

1. DEEDS (§ 115)—ERRONEOUS DESCRIPTION.

Where the land intended to be conveyed by an executor's deed was erroneously described as being in range 24, instead of range 23, the legal title was not conveyed by the deed to the purchaser.

2. EXECUTORS AND ADMINISTRATORS (§ 365)— SALE OF LAND—PURCHASE BY EXECUTOR.

Under the express provisions of Rev. St. 1879, § 166, an executor cannot, directly or indirectly, become the purchaser of land at his own sale, whether such sale was made under a power in the will or under the order of the probate court.

3. EQUITY (§ 65)—MAXIMS—CLEAN HANDS— PURCHASE BY EXECUTOR—TRUST — ESTABLISHMENT.

Where an executor conveyed land of the estate ostensibly to his son, and annexed to his report of such sale his affidavit that he did not directly or indirectly become the purchaser thereof, he cannot afterwards by showing that the purchase money was paid by him, and that the deed was made to his son with the understanding that it was to be reconveyed to him, have a trust declared in a court of equity; since, having unclean hands, a court of equity will refuse of its own accord to enforce any equity he might have.

4. EXECUTORS AND ADMINISTRATORS (§ 388) —SALE OF LAND—INTEREST OF GRANTEE.

An executor conveyed estate land to his son, with the understanding that the son was to later reconvey to him. The son did not pay, or agree to pay, anything for the land, but the purchase price was paid by the executor. The deed because of a misdescription did not convey the legal title. Held, that as the son did not pay, or promise to pay, anything for the land, he had no equitable interest in the same.

5. CONTRACTS (§ 138)—ILLEGALITY—RELIEF.

An executor, in order to purchase land at his own sale, had the deed made to his son under an arrangement that the son was to reconvey to him. Because of a misdescription, the legal title was not conveyed by the deed. Held, that a court of equity will aid neither the son nor the executor, as they were both parties to an unlawful transaction.

Appeal from Circuit Court, Greene County; George Pepperdine, Special Judge.

Suit to quiet title by James K. Gilmore against M. C. Thomas. From a decree in favor of complainant, defendant appeals. Affirmed.

This is a proceeding to quiet the title to 20 acres, the W. ½ of the S. W. ¼ of the N. W. ¼ of section 28, township 30, range 23, in aid of which an injunction was issued to prevent defendant from cutting timber from the land pending the suit. The petition alleges that defendant took possession and inclosed the land in November, 1907, and claims to own some title, interest, or estate in the land.

The answer alleged that James Gilmore, deceased, is the common source of title, and that he died in 1878, leaving a will which was probated, and that he intended by the will to provide that the land should be sold by his executor and the proceeds distributed among his heirs, but that by mistake the land was described in the will as being in range 24; that the plaintiff was named in the will as its executor; that the plaintiff, as such executor, under the power in the will contained, and under an order of the probate court, sold and conveyed the land to Sterling E. Gilmore, but that by mutual mistake the land was described as in the will as being in range 24; that the executor charged himself in the settlement of said estate with $60, the price for which the land sold, and distributed said proceeds among the distributees of the estate; that Sterling E. Gilmore on March 31, 1903, by quitclaim deed conveyed the land to W. P. Ennis, who, on June 27, 1907, by quitclaim deed conveyed it to the defendant. The answer then alleged that defendant is the owner in fee simple of the land, and asks that the court determine the estate, title, and interest of the parties and for a dissolution of the injunction. The reply alleges that Sterling E. Gilmore did not pay anything for the land, but that plaintiff as such executor charged himself with the amount for which it sold, and paid it out to the distributees of the estate; that Sterling E. Gilmore at no time claimed to be the owner of the land, and at no time had or held possession of it, but from the time of the sale until his death in 1905, a period of more than ten years, acquiesced in the plaintiff's ownership of the land. The reply then alleges title in the plaintiff by adverse possession from 1894 to 1907. The testator, James Gilmore, left three children, of whom plaintiff is one, and also left descendants of four other children. The executor reported the sale of land to Sterling E. Gilmore, stating that the purchaser had paid $60, the consideration, and the executor attached to the report his affidavit that he did not directly or indirectly purchase the land. The executor's deed was dated March 2, 1895, and was acknowledged March ____, 1903, and the evidence for plaintiff tended to show that it was not delivered to Sterling E. Gilmore until after its acknowledgment. The plaintiff at various times cut timber from the land, and gave permission to other persons to get wood from it. It was not inclosed until the defendant inclosed it with a single wire in 1907.

Howard E. Gilmore, a son of the plaintiff, testified that he had talked several times with his brother Sterling about the land, and that Sterling stated that the deed was made to comply with the law, and that the plaintiff had furnished the money to pay for the land, and that he (Sterling) had not paid anything for the land. Two other sons of plaintiff testified and to some extent corroborated Howard's evidence.

In 1903 the plaintiff was negotiating a sale of the land, and the mistake in the description was discovered. Sterling, who lived at Carthage, was sent for, and some effort was made to correct the title. Taxes had been allowed to accumulate against the land. The following letter was in evidence: "Carthage, Missouri, 12-25-04. Dear Father: Pardon me for not writing sooner. Referring to that land matter I think I was out $26.00 for taxes and other expenses. If you will repay me this amount, I will give you a quitclaim deed. Then you can bring suit to quiet the title which is a very simple matter as the time limit is now expired. I am writing mother about all there is of interest. I hope your health is good and you will enjoy this bright Christmas day. We will be glad to hear from you often. Respectfully, S. E. Gilmore."

The evidence for defendant tended to show that at one or more times Sterling Gilmore claimed to own the land, but it did not show that he ever had possession of it, or exercised acts of ownership over it. From 1894 until 1903 the assessment books for some years showed that the owner was "unknown," and for other years during that time it was assessed to Francis Gilmore, a son of the plaintiff...