Hagman v. Shaffner

• Decision Date: 31 October 1885
• Citation: 88 Mo. 24
• Parties: HAGMAN, Appellant, v. SHAFFNER et al.
• Court: Missouri Supreme Court

88 Mo. 24

HAGMAN, Appellant,

v.SHAFFNER et al.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Henry Circuit Court.--HON. JAS. B GANTT, Judge.

AFFIRMED.

M. A. Fyke for appellant.

The appellant, for a reversal of this case, relies upon the testimony, which conclusively shows: (1) That John M. Shirley had sold, and intended to convey the land to Clayton, and by oversight the same was omitted from the deed. (2) That defendant, Shaffner, before obtaining quit-claim deeds from the Shirley heirs, had full notice of the intention of Shirley to convey the land to Clayton, and of the omission of the same from the deed. (3) That defendant, Shaffner, knew before he obtained his deeds that Clayton had conveyed the land to Dauwalter, and Dauwalter to plaintiff, and that plaintiff was in possession of the same. These facts appearing clearly, from the testimony, the plaintiff is entitled to a decree, as prayed in his petition.

Foster P. Wright for respondents.

(1) The petition contains no equity. (2) The evidence offered to show that the land in controversy was omitted from the deeds by mistake, is not of such a satisfactory character as to justify the interference of a court of equity. In such cases the evidence must be definite, clear and positive. Forrester v. Scoville, 51 Mo. 268; Hendricks v. Wood, 79 Mo. 590; Judy v. Bush, 81 Mo. 975. (3) Plaintiff bought with knowledge of the fact that Clayton never had the title, and he, therefore, cannot maintain his suit.

RAY, J.

This is a proceeding in equity, the nature and object of which is to set aside and hold for naught a deed to a certain ten acre tract of land, executed to the defendant, Isaac Shaffner, by the other defendants, who are the heirs of John Shirley, deceased, as well as the title of said heirs, and to vest the title thereto in plaintiff. Shirley was the owner of a large body of land in Henry and St. Clair counties, Missouri, and situated, as we infer, on and near the county line between said counties. There had been pending for some weeks some negotiations between him and Wm. A. Clayton, for the sale of said lands, and a trade was made during the last sickness of said Shirley, and on the day of his death, by which Shirley conveyed five hundred and twenty acres, seventy of which were located in St. Clair county, and the rest in Henry county, by his two several deeds, and Clayton executed at the same time his several notes for three thousand dollars, payable in four years, and turned over some personal property as part of the purchase price. The petition alleged that said Clayton had paid to said Shirley the full purchase price of said real estate. This, the separate answer of Shaffner denied. The land in dispute is ten acres of the Henry county land, and was wild and unimproved timber land * * * and was not conveyed by said deeds. Shirley intended and declared that the trade and deeds were to be null and void if he got well, but in the event of his death they were to stand and hold good. Shirley and Clayton being unable to agree upon the price, agreed upon two parties to appraise the same, who, in turn, called in the defendant, Shaffner, to act with them as a third appraiser in that behalf, and they valued the land in a lump at six dollars per acre. Plaintiff read in evidence a deed from said Clayton, dated January 26, 1877, conveying the land in dispute to Peter Dauwalter. At the time of said conveyance said Clayton learned, for the first time, through Blackford, who examined the title at that time, that the ten acre tract was not included in his deed from Shirley, and ninety dollars of the purchase money was left deposited with Blackford upon an agreement between him and Dauwalter, that it should not be paid until the title thereto was perfected. An agreement and receipt to that effect, signed by said Clayton and cotemporaneous with the delivery of the deed, was read in evidence by plaintiff, and bore an endorsement of assignment, dated ______________, by Dauwalter, of his title and interest therein to the plaintiff, Hagman. Plaintiff also read in evidence a quit-claim deed, for a consideration of one dollar, from said Dauwalter to plaintiff, for the land in dispute, which contained a recital that the intention thereof was only to substitute plaintiff in the place of said Dauwalter in the said contract and conveyance between said Clayton and said Dauwalter.

The evidence is, we think, reasonably certain, indeed, clear, and beyond question, that the ten acre tract was intended to be conveyed, but was omitted, by mistake, from the Shirley deed of other lands to Clayton, and that Shaffner had notice and knowledge that the ten acre tract was so intended to be included in Shirley's deed of other lands to Clayton, as was charged in the petition. Said Shaffner was present when the trade was made and deeds delivered, and acted as one of the appraisers, appraising and including the ten acres with the rest of Shirley's land, and fixing a price therefor on all of it. Some four or five witnesses, also present, say positively that Shirley said that he was selling all his lands to Clayton, except one piece in St. Clair county. And in the evidence of Shaffner there are but two statements in this behalf, one of which is that he does not know...