Harrison v. McReynolds

• Decision Date: 02 July 1904
• Citation: 183 Mo. 533,82 S.W. 120
• Parties: HARRISON v. McREYNOLDS et al.
• Court: Missouri Supreme Court

82 S.W. 120

183 Mo. 533

HARRISON v. McREYNOLDS et al.

Supreme Court of Missouri, Division No. 2.

July 2, 1904.

DOWER — LIMITATIONS — TENANTS IN COMMON — ESTOPPEL — LACHES — APPEAL — OPINION — DICTA.

1. Rev. St. 1899, § 4387, relative to partition, permits any number of shares to be set off together in one parcel. Section 4600 provides that every interest in lands granted or devised to two or more persons other than husband and wife shall be a tenancy in common. On the death of a wife's father, the husband purchased the interest of certain heirs, and partition was had, in which a certain part was set off to the spouses. Held, that they were tenants in common, and not by the entirety.

2. A dower right, not asserted for 10 years after the death of the husband, is barred by limitations.

3. Where, in ejectment, defendant claimed that plaintiff was estopped to claim an interest in the land because his vendor had made no objection to its occupancy by defendant, an allegation of the answer that none of the parties discovered a mistake in the description of the land attempted to be conveyed by plaintiff's vendor to those under whom defendant claimed until a certain date was binding on defendant upon the question of plaintiff's knowledge.

4. In a suit for the reformation of a deed by a husband and wife, which mistakenly conveyed land they did not own, it was held on appeal that the deed was executed in such manner that, even if the description had been correct, it would have passed no title, and the Supreme Court said that it might be that the wife would, in ejectment, be estopped to claim the land intended to be conveyed. But there was no plea of estoppel. Held, that the question of estoppel was not decided.

5. A husband and wife agreed that his land and theirs should be conveyed to a child, who should convey a portion to her, and on the husband's death divide the remainder among the children. A deed to the child of land held by the husband and wife in common mistakenly described land they did not own, and was not so executed that it would have passed the title to the land intended. After the husband's death the division was made of the land which had been intended, and the children went into occupancy. The widow was not a party to the division, and all parties were ignorant of the mistake; and, while the widow took all the personalty, it was "given" her by the children, and was no more than the law allowed her. Held, that she was not estopped from claiming the land which she and her husband had intended to convey.

6. It appearing that the widow had little or no education, and that she had, after the division, endeavored to ascertain for two or three years the condition of the title, but been delayed by her attorneys until the suit for reformation was commenced, her vendee was not barred by her laches from bringing an action in ejectment.

Appeal from Circuit Court, Jasper County; Jos. D. Perkins, Judge.

Action by H. T. Harrison against America McReynolds and others. From a judgment for defendants, plaintiff appeals. Reversed.

H. T. Harrison, for appellant. McReynolds & Halliburton, for respondents.

GANTT, P. J.

This is an action of ejectment for the S. ½ of the N. W. ¼ of the S. E. ¼ of section 17, township 28, range 31, in Jasper county, Mo. The common source of title was admitted to be in Joel Grubb and Mrs. Rhoda C. Grubb, who were in their lifetime husband and wife. Mathew Payne, the father of Mrs. Rhoda C. Grubb, died seised of this and other lands, and after his death a partition was had. It was alleged in the petition for partition that Joel Grubb had by purchase acquired the interest of certain heirs in his own right, and that Mrs. Grubb had inherited a part of said land as a daughter and heir at law of Mathew Payne, deceased. The partition was in kind, and the shares of Joel Grubb and Mrs. Rhoda Grubb, his wife, were found by the court to be in the proportion of 3 13/15 to 7 3/5 of said land, quantity and quality considered, and their said shares were ordered to be set off to them by metes and bounds. The commissioners set off to Joel Grubb and Rhoda C. Grubb the W. ½ of the S. E. ¼ of section 17, township 27, range 31, in Jasper county, Mo. Joel Grubb died in October, 1889. Mrs. McReynolds is one of the children and heirs at law of Joel Grubb. Joel Grubb was married twice, if not three times. His first wife was Cyrena Payne, the mother of five of his children, to wit: America McReynolds, Sarah A. Montague, John Grubb, Jacob Grubb, and Virgil Houston Grubb. Rhoda C. Grubb bore him one child, Victoria Grubb, who also survived him, and afterwards intermarried with Mr. Coulter. From the statement of counsel it appears that Joel Grubb had another wife, who was the mother of two children, but that for some reason Joel Grubb disowned them.

In 1877 Joel Grubb was the owner in fee of the N. W. ¼ of the S. W. ¼ of section 10, township 27, range 31, except 2½ acres thereof. It seems this was his homestead. He also owned 26½ acres, a part of the N. W. ¼ of the S. E. ¼ of section 9, township 27, range 31. The plaintiff in this suit bases his right to recover on purchases and deeds from Mrs. Rhoda C. Grubb and her daughter, Mrs. Victoria Coulter, to the N. W. ¼ of the S. E. ¼ of section 17, township 27, range 31. The deed from Rhoda C. Grubb was a quitclaim deed, and dated May 28, 1896, consideration $500, and recorded in Book 145, p. 246. Mrs. Coulter's deed was executed by her and her husband to plaintiff August 16, 1899, for the consideration of $80, and is recorded in Book 145, p. 377. It was admitted that defendants McReynolds were in the possession of the S. ½ of the N. W. ¼ of the S. E. ¼ of section 17, township 28, range 31, the land described in the petition. The answer is a general denial, but admits defendants have been in possession of the land since the 21st day of October, 1899. The answer then at length and in detail proceeds to state all the real estate owned by Joel Grubb in 1877 in his own right, and his ownership with his wife of the N. W. ¼ of the S. E. ¼ of section 17, township 27, range 31, except three-fourths of an acre in the southwest corner—said Joel owning an undivided three-fourths thereof and his wife Rhoda owning one undivided one-fourth—the previous marriage of Joel Grubb, and the fact that in 1877 there were living five children by his first wife, as already stated. The substance of the remainder of the answer will appear in the course of the opinion. To this answer plaintiff filed a reply denying all the new matter alleged therein.

This controversy has been in this court on a former occasion, in the cause of McReynolds v. Grubb, 150 Mo. 352, 51 S. W. 822, 73 Am. St. Rep. 448. That was a suit in equity to correct the mistake made in the description of the land in suit in the deed from Joel Grubb and Rhoda C. Grubb to Jacob Grubb, of date of March 9, 1877, whereby the N. W. ¼ of the S. E. ¼ of section 17 was described as the N. E. ¼ of the S. E. ¼ of said section 17; and it was then held that as the interest of the said Rhoda C. Grubb in said N. W. ¼ of the S. E. ¼ was inherited by her from her father, Mathew Payne, after her marriage to Joel C. Grubb and prior to the adoption of section 6864, Rev. St. 1889, it was not her separate estate, and could only have been conveyed by her and her husband jointly, and then only by deed signed and acknowledged by them as provided by section 2, p. 934, Wag. Rev. St. 1872, and, as said deed did not describe the land intended to be conveyed as to Mrs. Grubb, it conveyed neither the legal nor equitable title, and a court of equity could not correct said deed. Thereupon the plaintiff, who had acquired the interest of Mrs. Grubb and her daughter, Victoria Coulter, brought this action in ejectment.

1. The first proposition advanced by plaintiff on this appeal is that by the decree in partition of the estate in this land of Mathew Payne, deceased, Joel Grubb and Rhoda C. Grubb became tenants by the entireties of the N. W. ¼ of the S. E. ¼ of section 17, township 27, range 31, except three-fourths of an acre in the southwest corner thereof. This is a misapprehension of the law and a misapplication of the doctrine of tenancy by the entireties. Unquestionably at common law a conveyance to husband and wife in fee vests the estate in them as one person, the whole of which remains to the survivor of them, and the statutes of this state have not altered or modified the common law in this respect, but have reaffirmed it. Section 4600, Rev. St. Mo. 1899; Doe ex dem. Freestone v. Parrott et al., 5 Term Rep. 655; Gibson v. Zimmerman, 12 Mo. 386, 51 Am. Dec. 168; Garner v. Jones, 52 Mo. 68; Edmondson v. Moberly, 98 Mo. 523, 11 S. W. 990; Hume v. Hopkins, 140 Mo. 72, 41 S. W. 784; Russell v. Russell, 122 Mo. 235, 26 S. W. 677, 43 Am. St. Rep. 581. In all such cases the deed or will creates the title in the husband and wife; but in partition, even if made by deeds inter partes, no additional estate is conveyed to the partitioners. The decree of partition in the one case or the voluntary deeds in partition in the other only have the effect of assigning to each coparcener in severalty and by metes and bounds that which was already his or hers. Our statute expressly permits any number of shares to be set off together in one parcel. Section 4387, Rev. St. 1899. This is settled law in this state. It follows that Joel Grubb and his wife Rhoda were tenants in common, and not by the entirety, in said 40 acres. Whitsett v. Wamack, 159 Mo. 14, 59 S. W. 961, 81 Am. St. Rep. 339; Palmer v. Alexander, 162 Mo. 127, 62 S. W. 691; Snyder v. Elliott, 171 Mo. 362, 71 S. W. 826; Propes v. Propes, 171 Mo. 407, 71 S. W. 685. It is, then, obvious that in no event could plaintiff recover more than the three-elevenths which Mrs. Rhoda C. Grubb inherited from her father, Mathew Payne, by virtue of his deed from her. Her dower right in the eight-elevenths (or three-fourths, as...