Grant v. Hathaway

• Decision Date: 04 June 1906
• Citation: 96 S.W. 417,118 Mo. App. 604
• Parties: GRANT v. HATHAWAY.
• Court: Missouri Court of Appeals

96 S.W. 417

118 Mo. App. 604

GRANT v. HATHAWAY.

Kansas City Court of Appeals. Missouri.

June 4, 1906.

1. TROVER AND CONVERSION — OWNERSHIP OF GOODS — SUFFICIENCY OF ALLEGATION.

In an action by an administrator for the conversion of goods claimed to have been owned by intestate, an allegation that intestate, at the time of his death, was "seised and possessed" of the property, was sufficient as an allegation of ownership.

2. EVIDENCE — VALUE OF PROPERTY — TROVER AND CONVERSION.

In an action for the conversion of mules, evidence of what was paid for the mules eleven months before they were converted was no evidence of their value at the time of the conversion.

3. ADMINISTRATORS — ACTIONS — ISSUES AND PROOF.

In an action by an administrator for the conversion of property belonging to his decedent, failure to prove an allegation that decedent left a will was not fatal, since plaintiff did not derive his title from the will.

Appeal from Circuit Court, Callaway County; A. H. Waller, Judge.

Action by E. W. Grant, as administrator, against Charles A. Hathaway. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

N. D. Thurmond and J. W. Tincher, for appellant. David H. Harris and Robert McPheeters, for respondent.

BROADDUS, P. J.

The plaintiff, as administrator of the estate of D. S. W. Hathaway, instituted suit against the defendant on two counts. The first is in the nature of a replevin for certain personal property, and the second for the conversion of the same property. Before the case was finally submitted to the jury, the plaintiff took a nonsuit as to the first count, and the cause was submitted on the second count. The finding and judgment were for the plaintiff, from which defendant appealed.

The defendant has renewed in this court the contest he waged in the trial court as to the inconsistency of the two counts, but, as the first is no longer in the case, his argument has no longer any force. The second count of the petition alleges that the deceased, D. S. W. Hathaway, at the time of his death, was seised and possessed of six mules, two sets of harness, one buggy, a lot of farming utensils, and hay and corn, all of the value of $1,502. Following this allegation the petition states that: "The defendant, being in possession of said goods, chattels and personal property, disposed of the following portions of the same, to wit, two mules of the value of $280, and corn and hay of the value of $600," etc. The defendant also contends that the allegation in said count that the deceased, at the time of his death, "was seised and possessed," of the property is not a sufficient statement of ownership. The word "possessed," in the sense in which it was used, means "owned"; that is, that the deceased was the owner of the goods at the time. Words & Phrases Defined, vol. 6, p. 5463. "Seised" means possession and ownership in the sense used. Id., vol. 7, p. 6396. We do not think the point well taken, as the words used are sufficient to constitute an averment of ownership. The undisputed facts are that, in the latter part of the year 1903, or the beginning of the next year, D. S. W. Hathaway, an old man, came from the state of Iowa and bought a tract of land known as the "Henry Tyler land," containing 120 acres, and it was conveyed to him. Soon thereafter, he bought another tract adjoining the Tyler land containing 160 acres, which he caused to be conveyed to the defendant, and he then had defendant to convey 40 acres of the last-named tract to David S. W. Hathaway; that being not only the name of deceased, but also of a little son of the defendant. There was evidence to the effect that deceased always signed his name "D. S. W. Hathaway" and went by the name of Stanley among his old friends, and was never called David, while his grandson was called by deceased and others David. But there was direct testimony to the effect that D. S. W. Hathaway, Sr., was intended as the grantee. There was a balance of $1,600 of the purchase price unpaid on the residue of the 160-acre tract, to secure which defen...