Gray v. Gray

• Decision Date: 31 October 1884
• Citation: 83 Mo. 106
• Parties: GRAY v. GRAY et al., Appellants.
• Court: Missouri Supreme Court

83 Mo. 106

GRAY

v.GRAY et al., Appellants.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Jasper Circuit Court.--HON. M. J. MCGREGOR, Judge.

REVERSED.

Phelps & Brown with Wm. M. LaForce for appellants.

The finding and judgment of the trial court are wholly unsupported by the evidence. Mrs. Gray never consented to the provision of the deed. Nor is there any estoppel in the case against her--an estoppel in pais must be specially pleaded. Guinn v. Simes, 61 Mo. 339. An equitable estoppel occurs when a party to an action has by his act or declaration induced the other party to do some act so as to change his position which otherwise would not have been done. 6 Wait's Actions and Defences, 681; Heath v. Bk., 44 N. H. 174; Chandler v. White, 84 Ill. 435; Noble v. Blount, 77 Mo. 235; Piper v. Gilmore, 49 Me. 149. A party will not be estopped from setting up a claim to property by acquiescing in the acts of another with regard to it unless he is acquainted with his rights. Buckingham v. Smith, 10 Ohio 288; Boggs v. Mining Co., 14 Cal. 279.

E. J. Montague for respondent.

HENRY, J.

In the year 1876 the defendant, Martha M. Gray, obtained a divorce from the plaintiff in the common pleas court of Jasper county with an allowance of one thousand dollars as alimony in gross, and plaintiff alleges that on the 2nd day of October thereafter he executed and delivered to his brother, John W. Gray, a deed conveying a tract of land in Dade county in trust for said Martha and her and his children. The trusts declared were as follows:

First, The trustee, after paying the costs and repairs and taxes on said lands to receive one-half of the balance of the net proceeds of the rent of said farm annually, which shall be applied to the support, maintenance and education of the said parties of the third part--the children. Except that it shall not be used for the education of the said Martha M. Gray, which said money arising from the rent of said lands, or the rents in kind shall be delivered to the said Martha M. Gray.

Second, Whenever the whole of said lands can be sold for the sum of twenty-four hundred dollars, or when the same can be sold to the satisfaction of the said parties of the first and second part, then the proceeds of such sale of said lands shall be divided equally between the party of the first and second part, and the party of the second part shall execute bond to the said Hester, Ida, Lucy and Fannie, in at least double the amount of one-half the price of said land, to be approved by the court or judge exercising probate jurisdiction in the county where said children may then reside, which money shall be by said party of the second part, or his successor in trust, loaned out on good security at the best rate of interest that can be obtained, and the interest shall be applied as is required that the rents should be applied until the youngest child shall arrive at eighteen years of age. Then said money in the hands of the trustee shall be divided equally amongst said children, and in case of the death of either of said children, leaving heirs, then the share which should have gone to such child shall go to such grandchild or children, and in case all said children shall die without issue living, then said money shall be paid to the party of the first part.

That Martha M. Gray accepted said deed of trust and agreed to enter upon the record satisfaction of said award of alimony, but that disregarding her said agreement she had caused an execution to be issued on said judgment for alimony directed to the defendant, Whiteside, sheriff of Dade county, who has levied the same upon said real estate and advertised it for sale on the 4th of April, 1882, and praying that he be restrained and enjoined from proceeding under said execution. The answer was a general denial and on a hearing of the cause the preliminary injunction was made perpetual and the defendants have appealed.

The plaintiff's brother, Jno. W. Gray, testified that Martha M. Gray agreed to accept in lieu of her alimony a deed conveying to him as trustee for the children the land in controversy and she to receive one-half of the rents of the farm until it was sold for their maintenance and a deed of trust was to be drawn up to that effect. He testified that W. H. Phelps, her attorney, was present. That afterwards the deed read in evidence was executed by plaintiff. Does not know that she ever saw it. It was not delivered to her but was sent to Dade county for record. She afterwards for several years received one-half the rent of the farm.

Plaintiff testified that in 1879 he got the deed from the recorder's office of Dade county and took it to Carthage and delivered it to Mrs. Gray, and this, so far as he knew, was the first time she ever saw the deed. That Phelps, her attorney, was present when she agreed to accept the provision made for her in the deed. That Mr. Buller, Phelps' law partner, went with plaintiff to the recorder's office in Dade county and Buller delivered the deed to that officer for record. He further testified that the deed was not read to Mrs. Gray on the day of its execution. It appears, also, from the evidence that prior to the execution of this deed an execution had been issued for said alimony and placed in the hands of the sheriff of Dade county who was ordered by Phelps and Buller in October, 1876, to hold up the execution, stating in the order that “the case had been settled by compromise.”

Buller testified that he did not recollect why he directed the sheriff to hold up the execution.

Mrs. Gray testified that on or about the 1st of May, 1876, she signed a quit-claim deed to Miles Gray relinquishing her dower right in consideration of a deed made by him to her for an undivided half of said land. These deeds were never delivered. That on the occasion when plaintiff and John Gray came to her house she said to plaintiff if he would convey to her an undivided half of the farm and timber land advertised for sale for her alimony she would stop the sale. They agreed to do it. They then went out and brought Phelps to her house and Phelps then told them he would not settle unless the deed was made to her and...