Harvey v. Long

• Decision Date: 20 May 1914
• Docket Number: No. 16203.,16203.
• Citation: 168 S.W. 708,260 Mo. 374
• Parties: HARVEY v. LONG.
• Court: Missouri Supreme Court

168 S.W. 708

260 Mo. 374

HARVEY v. LONG.

No. 16203.

Supreme Court of Missouri.

May 20, 1914.

Rehearing Denied July 2, 1914.

QUIETING TITLE (§ 52)—ACTIONS—JUDGMENT.

In a suit to quiet title brought under Rev. St. 1899, § 650, a judgment for defendant held correct.

Graves, Woodson, and Bond, JJ., dissenting.

In Banc. Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

Action by Hubert M. Harvey against James Long. From a judgment for defendant, plaintiff appeals. Affirmed.

R. P. Spencer and Morton Jourdan, both of St. Louis, for appellant. Reynolds & James and Duggins & Duggins, all of Marshall, and W. M. Williams, of Booneville, for respondent.

BROWN, C.

Suit begun in Saline county circuit court August 12, 1908, to determine the title to a farm of 170-odd acres of land in that county. The plaintiff is the son and sole heir of Hubert M. Harvey, who died at his residence in Chicago, Ill., February 26, 1895, intestate. He was about 22 years old when this suit was instituted. Both parties claim under the elder Harvey, the plaintiff as heir, and the defendant as grantee in a deed from Mary B. Harvey, the widow of the deceased, and mother of the plaintiff. She claimed title by a deed from her husband dated August 12, 1893. The delivery of this deed is the principal issue in the case.

The petition was a formal one framed upon section 650 of the Revised Statutes of Missouri 1899.

The answer is very long. In addition to the general denial, it pleads, in substance; (1) That the defendant is an innocent purchaser for value from Mrs. Harvey, having paid $10,875 for the land, and there being no reason to suspect any weakness in her title as shown of record, and believing it to be good. (2) That out of the purchase money he paid liens resulting from money borrowed by Mr. Harvey in his lifetime, and secured by deeds of trust executed by himself and wife, as well as like incumbrances placed by Mrs. Harvey after his death. (3) That after Mr. Harvey's death, and in 1896, Mrs. Harvey had brought suit in the circuit court for Saline county against the plaintiff and John L. Bolen, the administrator of the estate of Hubert M. Harvey, deceased, and obtained judgment vesting in her the legal title to the land. (4) That, if the deed from Mr. Harvey and his wife had not been delivered, it had fallen into the hands of Mrs. Harvey by the negligence of the grantor, so that his heir is estopped from denying its complete execution. (5) That the deed from Harvey to his wife was made in pursuance of a contract then fully executed on her part whereby she had conveyed to him, or to another at his direction, her own farm of 160 acres, in consideration of his promise to convey to her the land in question. It asked equitable relief upon the facts so stated.

The reply, with considerable detail, puts in issue the matter specially pleaded in the answer.

The question of the delivery of the deed grows out of the following facts, which are not disputed: About 11 o'clock on the morning of Mr. Harvey's death Mr. John L. Bolen, who had been a neighbor of the family in Missouri, and was the nearest business friend and adviser of Mrs. Harvey after the death of her husband, received a telephone message from the physician that Mr. Harvey had just died, and asking him to come to the house. He went out there, where he met Mrs. Harvey and the doctor, and one or two neighbors. He talked with her about the Missouri land, and she told him about this deed. He said she should have it recorded. He went down to Mr. Harvey's office, forced open his desk, not having a key, and got out all his private papers, including the deed in question, and took them to Mrs. Harvey's house, and at her instance sent the deed to Marshall, Mo., for record.

The circumstances affecting the making of this deed as disclosed in evidence are as follows: Mr. Hubert M. Harvey was a lawyer who resided in Marshall, Saline county, Mo. He owned two farms in that county, one of them the land involved in this suit, and the other 160 acres lying near it. In April, 1890, he determined to remove to Chicago. His wife did not want to go. She consented, however; but before going she wanted him to deed her some land, and on April 19th he conveyed to her the 160-acre tract through one Burruss as a conduit of the title. He went to Chicago during the same month, and she followed him in September of that year. Law practice did not come to him with alacrity in his new home. He undertook to speculate in real estate in North Chicago and ran behind in it. He lost some property by foreclosure, and in the summer of 1892 desired very much to raise money. At that time he thought he saw an opportunity to sell Mrs. Harvey's land, and promised that, if she would sell, he would deed her the land in controversy. It was a slow sale, and in July, 1892, he borrowed $7,000 from J. P. Huston; he and his wife giving their note therefor secured by mortgage on both tracts of land. The note ran five years at 7 per cent. interest. During that year he succeeded in negotiating a sale of Mrs. Harvey's quarter section to one Blackburn, conveying to him on January 5, 1893, by warranty deed for $9,600. Out of this, after paying the Huston loan and interest and expenses, he had a little more than $2,000. Of this $500 was given to Mrs. Harvey. He invested $1,000 for her in stock which afterward proved to be worthless. The remainder was expended in repairing a house they had purchased on the South Side, taking the title in Mrs. Harvey's name, and which she desired to be in condition to rent during the Columbian Exposition, which she did, receiving $1,500 as rental. This house was purchased after the return of Mrs. Harvey from a visit to Missouri in 1892; $2,500 being paid on it. Where this money come from—whether from the sale of a house they had previously purchased in North Chicago, or from the Huston loan or other funds—does not appear. It does appear, however, that this cleaning up did not put an end to Mr. Harvey's financial necessities; the title to the remaining tract, the one now in controversy, being strewn with evidences of his deed for money. She joined with him in a deed of trust given December 12, 1893, to secure the payment of their note for $2,000, borrowed from George A. Murrell, and also in a like deed dated April 12, 1894, to secure payment of his note for $382, borrowed from D. N. Burruss. These were unpaid at the time of his death. After his death Mrs. Harvey seems to have taken care of them. The note to Burruss was paid June 1, 1895, and on April 15, 1896, she made a deed of trust of this land to secure $2,500, borrowed from Thomas R. Lawless and Mary J. Woodson, and the Murrell note was then paid. This was satisfied in its turn from money realized from a loan of $3,250 from John B. Henderson, secured by deed of trust on the same land. This last-mentioned deed of trust was also satisfied on May 15, 1903, out of the proceeds of a loan of $5,000 from the Prudential Insurance Company of New Jersey, and this and a second mortgage for $1,568.93 to the Farmers' Savings Bank of Marshall, Mo., made November 16, 1905, were satisfied by the defendant as a part of the purchase price of $10,875 paid Mrs. Harvey for the land.

Mrs. Harvey seems, after her husband's death, to have taken up the education of her boy. She kept a boarding house in Columbia for five years while he attended the Missouri State University, graduating just before the bringing of this suit from the law department.

In addition to the undisputed evidence that the deed in question was prepared by Mr. Harvey in pursuance of an agreement with his wife that he would convey the land in controversy to her, two witnesses testified directly that Mr. Harvey had stated to them, in substance, that he had conveyed the land to his wife. Mrs. Harvey's statement of the facts relating to the delivery of the deed is as follows:

"Q. Do you remember when it was made? A. Yes, sir. Q. Did your husband deliver it to you at that time? A. No, sir. Q. Did he offer to give it to you? A. He brought it out to me and read it to me. I was getting dinner at the time. He read it aloud to me, and I told him I didn't like it. Q. Did you accept it when he offered to give it to you? A. No, sir; I didn't want it that way. It wasn't just the way I thought it ought to be. Q. Why didn't you accept it, Mrs. Harvey? A. Well, I don't know anything about deeds; but before we moved to Chicago—understand Mr. Harvey went there in April, 1890, but I didn't want to go and didn't go until September, and before I went I wanted him to deed me some land. I didn't want to go to Chicago, so he deeded me that 160 acres sold to Mr. Blackburn. He deeded that land to my brother, and my brother deeded it to me; then when he deeded this land I wanted him to deed it to somebody so they could then deed it to me, and so I wouldn't take this deed that way. Q. Because it was made directly to you, instead of to a third party? A. Yes, sir."

1. The appellant has assigned for error that the court refused, in disregard of the request of plaintiff made after the close of the evidence at the trial, and before judgment, to state in writing his conclusions of facts found separately from the conclusions of law.

The petition asked no relief, excepting the purely equitable one that his title be established and quieted as against the defendant. The special defenses of the answer look solely to the distinctively equitable remedies of subrogation, specific performance, and equitable estoppel. Applying the more definite and conclusive test of our Code of Civil Procedure by which these pleadings must be judged, they frame no issue of fact to be tried by a jury (R. S. 1909, § 1968), but must be tried by the court, unless it elect to take the opinion of a jury upon some specific question of fact. (Id. § 1969).

It is now firmly settled by the adjudications of this court that in such cases, it being our duty to...