Harlan v. Moore
| Citation | 34 S.W. 70,132 Mo. 483 |
| Parties | Harlan v. Moore et al., Appellants |
| Decision Date | 18 February 1896 |
| Court | United States State Supreme Court of Missouri |
Appeal from Carroll Circuit Court. -- Hon. W. W. Rucker, Judge.
Affirmed.
Hale & Son for appellants.
(1) The court erred in permitting plaintiff to file the amended petition after the cause had been tried and submitted to the court; it introduced a new cause of action which is not permissible. (2) The court erred in permitting respondent to prove by the witness, Rose, declarations made by W. V. Harlan in regard to the deeds after the suit was brought; he was not a party to the suit, and his statements were hearsay as to the defendants below. See Pickering v. Pickering, 6 N.H. 120; Chamberlan v. Davis, 33 N.H. 121; Murphy v. Hubert, 16 Pa. St. 50. (3) The court erred in permitting plaintiff to testify as to promises made to her by W. V. Harlan before the marriage, that he would convey her certain real estate in consideration of the marriage. (4) The court erred in sustaining a motion for a "nunc pro tunc" entry in the cause at the July term, 1894, after the case had been tried and the motions for rehearing and in arrest had been overruled at the previous March term; it was in fact a motion to be allowed to amend the amended petition and the judgment entry thereon by changing the descriptions of the lands so as to correspond with the description in the original petition. There was nothing in the record to amend by, nothing to show which was the correct description; it was not, in fact, in any sense a "nunc pro tunc" entry which, as the books say, is an entry or record made "now for then." That is a record which, it appears from the papers, should have been made, but which the court failed to make. Nothing of that sort appears in this case. See Gray v. Brignerdello, 1 Wall. (U.S.) 627; 16 Am. and Eng Encyclopedia of Law, p. 1005. (5) The court erred in allowing plaintiff below to testify as to the declarations of W. V Harlan in relation to the deeds made after the marriage; the marriage relation then existed; and the ruling of the court below in allowing her to testify to such admissions or declarations is directly in conflict with the proviso to section 8922, Revised Statutes, Missouri, 1889. (6) The evidence in this case, whilst it is sufficient to show that Harlan executed two deeds, is not sufficient to show that either one conveyed to plaintiff an estate in fee simple. The evidence must be clear, positive, and convincing. Modrell v. Riddle, 82 Mo. 31; Turner v. Shaw, 96 Mo. 22.
J. F. Graham and J. W. Sebree for respondent.
(1) A deed or gift executed by a man to his betrothed in contemplation of marriage [afterward consummated] makes the wife a purchaser for value [good even against existing creditors, of which there are none in this case]. Chapman v. McInrath, 77 Mo. 44; White v. Ingram, 110 Mo. 474; Wood v. Broadly, 76 Mo. 31 [Gift]. Such a transaction is a provision for her which it is his duty to make. Gilliland v. Gilliland, 96 Mo. 525; 112 Mo. 415. Marriage or an agreement to marry, if consummated, is the highest consideration for the transfer of property from him to her. Powell v. Moeller, 107 Mo. 471. Marriage is a valuable consideration. Lionberger v. Baker, 88 Mo. 447, 448; Scott v. Scott, 95 Mo. 321. (2) The amended petition was properly allowed to conform to the facts in relation to the execution of the second deed. Sec. 2098, R. S. 1889; Blair v. Railroad, 89 Mo. 394; Bennet v. McCans, 65 Mo. 194. It can not be said that the court abused its discretion in this regard, conferred on it by express statute. Ensworth v. Rartan, 67 Mo. 623. The courts should be as liberal as the statutes. Carr v. Moss, 87 Mo. 447. (3) The nunc pro tunc entry was proper even after appeal. Bank v. Allen, 68 Mo. 474; Gamble v. Daugherty, 71 Mo. 602. (4) Appellants have not appealed from the entry of this nunc pro tunc judgment. Railroad v. Mackbee, 63 Mo. 349; Jones v. Hart, 60 Mo. 362. No rights of third parties are here involved; no rights have intervened between the time of the original judgment entry and the nunc pro tunc order. (5) Under prayer for general relief writ of possession may issue. Woodworth v. Tanner, 94 Mo. 129.
This is a suit in equity to set aside and cancel certain deeds made by one William V. Harlan to defendants, two of his children, in fraud of the rights of plaintiff, who is the wife of said Harlan.
The petition charges, in substance, that in September, 1892, in consideration of a promise by plaintiff to marry him, William V. Harlan conveyed to her by sufficient deed the title in fee to forty-five acres of land, describing it. That pursuant to the agreement she did marry the said Harlan and the deed was delivered to her, but she neglected to have it recorded. That afterward, with intent to defraud plaintiff the said Harlan executed and delivered to defendants deeds purporting to convey to them the same land. That said deed was made to the grantees without their knowledge and was without consideration. The answer admitted the execution and delivery to them of the deed, but denied all other allegations. The case was tried upon these pleadings.
The evidence showed that plaintiff was a widow living in Texas, and William V. Harlan was a widower living in Carroll county in this state. Both were matrimonially inclined. Plaintiff advertised for a correspondent. Harlan answered. A correspondence commenced, which resulted in an agreement to marry. In consideration of this agreement Harlan promised to convey to plaintiff the land which is the subject of this controversy. The parties met in Kansas City, and went together to Carrollton, and were duly married. After the marriage Harlan delivered to plaintiff a deed to the land which had been executed prior thereto. Afterward, in December, 1892, he executed and delivered to her another deed to the same land in fulfillment of the antenuptial contract. These facts are undisputed.
The evidence tended to prove that plaintiff objected to the first deed, on the ground that a fee simple title was not thereby conveyed, and that the second one was made as a full compliance with the previous agreement. The evidence shows that plaintiff retained possession of the deeds for some time but never had them recorded. It tends to prove that they were afterward, without her knowledge, taken from their place of deposit by Harlan and were destroyed or retained by him. It also tends to prove that the last deed was one of general warranty.
The principal question of controversy on the trial was the character of the deeds.
After the trial had been concluded the court permitted plaintiff to amend her petition so as to charge the execution of the two deeds in order to make the petition in this respect conform to the proof. The petition as amended misdescribed a part of the land.
The court found that the deeds were made in contemplation of marriage, and as a provision for plaintiff, and conveyed to her the fee simple title. The court further found that the deeds to defendant were without consideration and voluntary, and were made by Harlan with intent to cheat and defraud plaintiff. A decree was entered setting aside the deed to defendants and for possession, awarding a writ therefor. The decree made the same mistake in the description of the land as was made in the amended petition. From this decree defendants appealed.
At the next term, upon motion of plaintiff, the court permitted, by an order nunc pro tunc, an amendment of the amended petition and the judgment for the purpose of correcting the misdescription of the land.
I. The first error assigned is as to the action of the court in permitting plaintiff to amend her petition after all the evidence had been introduced and the trial had been concluded. The statute authorizing amendments is very broad and liberal in its terms. The court may allow an amendment of the pleadings at any time before final judgment "by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved." R. S. 1889, sec. 2098.
The substantial charges in the original petition are that in pursuance of an antenuptial agreement William V. Harlan conveyed the land to plaintiff by warranty deed, and that afterward without valuable consideration he conveyed the same land to defendants in fraud of plaintiff's rights. The real issue was whether the said Harlan conveyed the land to plaintiff prior to his conveyance to defendants. The evidence shows that Harlan made two deeds to plaintiff, the first in September and the second in December 1892; that the former of these conveyed a limited estate, Harlan retaining some kind of an interest therein, and the latter was made for the purpose of conveying a fee simple title. The original petition only charged the making of one deed. The amendment for the purpose of conforming the pleadings...
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