Grooms v. Morrison

• Citation: 249 Mo. 544,155 S.W. 430
• Parties: GROOMS v. MORRISON.
• Decision Date: 12 March 1913
• Court: United States State Supreme Court of Missouri

155 S.W. 430

249 Mo. 544

GROOMS v. MORRISON.

Supreme Court of Missouri. Division No. 2.

March 12, 1913.

Rehearing Denied April 8, 1913.

1. ESTOPPEL (§ 107)—PLEADING—NECESSITY.

Plaintiff in ejectment cannot assert that the widow through whom defendant claimed title was estopped from claiming as a homestead the whole of land left by her husband by having accepted dower therein, where such estoppel was not pleaded.

2. ESTOPPEL (§ 110)—NECESSITY OF PLEADING.

As a rule, equitable estoppel, unless pleaded, is not available.

3. HOMESTEAD (§ 141)—INTEREST OF WIDOW.

Under the Homestead Law of 1865 (Gen. St. 1865, c. 111, §§ 1-11), in force in 1874, the widow of one dying leaving land occupied as a homestead not worth more than $1,500 became the owner of such property in fee.

4. DEEDS (§ 118)—SUFFICIENCY OF EVIDENCE —PROPERTY CONVEYED.

Evidence in ejectment held to show a deed which, after the description, referred to the land as "it being the dower interest in the land belonging to the G. estate," meant that it was the same land set off as dower in that estate; the quoted clause not referring to the title conveyed.

5. DEEDS (§ 121)—QUITCLAIM DEED.

A quitclaim deed is as effectual to pass title as a warranty deed, and does not raise a presumption that grantor intended to convey only a part of her title.

6. DEEDS (§ 95)—CONSTRUCTION.

If there be no more certain method of determining the intention of parties to an instrument, a qualifying word or phrase used therein is generally held to apply to the last antecedent.

7. DEEDS (§ 93)—HABENDUM CLAUSE.

Where the nature of the title intended to be conveyed is made doubtful by the description or granting clause of a deed, the habendum may be considered in determining such intent.

8. DEEDS (§ 90)—CONSTRUCTION—FAVORABLE TO GRANTEE.

Where there is any doubt as to the intent of the parties to a deed, it should be resolved against grantor and in favor of grantee.

Appeal from Circuit Court, Clinton County; John G. Park, Special Judge.

Action by James W. Grooms against John Morrison. From a judgment for plaintiff, defendant appeals. Reversed and judgment directed for defendant.

Ejectment for 40 acres of land in Clinton county. Plaintiff recovered an undivided interest in the property sued for, and defendant appeals.

William Grooms is the common source of title. He died intestate in May, 1874, leaving a widow; also six children by a former marriage. Plaintiff is one of those children. At the time of his death William Grooms occupied the land as a homestead, and it is established by a preponderance of evidence that said property was not then worth more than $1,500. The widow of said William Grooms married a man named Martin, and at a date not shown by the record joined the children of her first husband (Grooms) in an ex parte partition suit. In that suit the land in controversy was set off to Mrs. Martin as her dower. Other lands of deceased were set off to the heirs. The residence upon the homestead was burned after the partition suit, and Mrs. Martin collected the fire insurance thereon. In 1882 defendant procured from Mrs. Martin and her husband a quitclaim deed for the property in dispute, which deed recites that in consideration of the sum of $400 grantors remise, release, and forever quitclaim to defendant "the southeast quarter of the northeast quarter of section 26, in township 55, of range 33, containing forty acres, more or less, it being the dower interest in the land belonging to the Grooms estate. To have and to hold the same, with all rights, immunities, privileges and appurtenances thereto belonging unto the said party of the second part, and his heirs and assigns forever, so that neither the said parties of the first part, nor their heirs, nor any person or persons for them or in their names or behalf, shall or will hereafter claim or demand any right or title to the aforesaid premises, or any part thereof, but they, and every of them, shall by these presents be excluded and forever barred." In 1894 defendant, for an expressed consideration of $600, purchased from the sister and four brothers of plaintiff what is described in the warranty deeds made by them as an undivided five-sixths interest of the land in dispute. Martha A. Martin died in 1903. Such other parts of the evidence and pleadings as are necessary to a full understanding of the case will be noted in our opinion.

E. C. Hall, of Kansas City, for appellant. W. S. Herndon, of Plattsburg, for respondent.

BROWN, P. J.

1. Respondent contends (1) that, by accepting the land when it was assigned to her as a dower in the ex parte partition suit, Mrs. Martin was estopped from asserting any other or greater title to the property, and that defendant as her grantee is likewise estopped; (2) that, even if the acceptance of the property as dower was not a waiver of her right to claim the whole title to same under the homestead law, the quitclaim deed executed by her and her husband only conveyed her life estate, and that upon her death the plaintiff became entitled to an undivided interest therein as an heir.

Estoppel.

The contention of plaintiff that by accepting the 40 acres of land in controversy as dower Mrs. Martin was (and the defendant claiming through her is) estopped from asserting that she acquired the whole title to said property as a homestead cannot be sustained for the reason that said estoppel is not pleaded. The petition of plaintiff contains no allegations except those necessary in an ordinary legal action of ejectment, and the answer is merely a general denial and a plea of the 10-year statute of limitation. Consequently there are no equitable issues in the case.

A Texas judge recently announced the doctrine that the statute of limitation when not pleaded, like the prayer of the wicked, "availeth nothing." The same doctrine with a few exceptions applies to estoppels in Missouri, as many decisions of this court bear witness. Golden v. Tyer, 180 Mo. 196, 79 S. W. 143; Brown Const. Co. v. MacArthur Bros. Co., 236 Mo. 41, loc. cit. 50, 139 S. W. 104; Keeney v. McVoy, 206 Mo. loc. cit. 59, 103 S. W. 946; Turner v. Edmonston, 210 Mo. loc. cit. 428, 109 S. W. 33, 124 Am. St. Rep. 739. The trial court is entitled to know what issues are involved in a case before he hears the evidence. It seems plausible that a widow by representing that she holds only a dower in the lands of her husband, and thereby causing other parties to expend their money in buying such lands from the heirs, should be estopped from afterwards asserting that she owned the fee; but it is difficult to see how plaintiff could bring himself into that class. His claim is not based upon a purchase, nor has he expended any money in acquiring his claim to the property. He asserts title only as an heir, and nothing that Mrs. Martin did has caused him to change his position to his injury.

2. Homestead Law of 1865.

The homestead law of 1865 (Gen. St. 1865, c. 111) was in force in 1874, when William Grooms died. Consequently, under the facts in this case, his widow became the owner in fee of the property in controversy. Skouton v. Wood, 57 Mo. 380; Register et al. v. Hensley, 70 Mo. 189, loc. cit. 194.

3. Construction of Deed.

The quitclaim deed...