Hauser v. Murray

• Decision Date: 24 March 1914
• Citation: 256 Mo. 58,165 S.W. 376
• Parties: HAUSER et al. v. MURRAY et al.
• Court: Missouri Supreme Court

165 S.W. 376

256 Mo. 58

HAUSER et al. v. MURRAY et al.

Supreme Court of Missouri, Division No. 2.

March 24, 1914.

1. QUIETING TITLE (§ 30)—NECESSARY PARTIES.

In an action to ascertain and determine the title to land, parties whose interests in the land had long since been transferred by deed, the irregularity of which was not questioned, to the parties to the suit, were not necessary parties.

2. JURY (§ 14) — RIGHT TO JURY TRIAL — EQUITABLE DEFENSES.

Under Rev. St. 1909, § 2535, authorizing actions to ascertain and determine the estate, title, and interest of the parties in real estate, where defendants, to defeat plaintiffs' apparent legal title, pleaded facts upon which they asked the court to declare a resulting trust, and also pleaded estoppel by acts in pais, though they asked no affirmative relief, a jury trial was properly denied, as it is the court's duty to ascertain and determine the title and interest of the parties, and by invoking equitable defenses defendants, in effect, requested an adjudication of the equities pleaded.

3. REMAINDERS (§ 17)—HOSTILE CHARACTER OF POSSESSION—POSSESSION OF LIFE TENANT.

Where a person in possession of land owned an undivided 11/48 interest in fee and a 19/48 interest for life, limitations did not run against the remaindermen.

4. LIFE ESTATES (§ 8)—REMAINDERS (§ 17)—HOSTILE CHARACTER OF POSSESSION—POSSESSION OF LIFE TENANT.

Neither a life tenant nor her grantee could claim adversely to the remaindermen, and limitations did not run against them until her death.

5. FRAUDULENT CONVEYANCES (§ 315)—SETTING ASIDE—EFFECT.

A judgment setting aside as to creditors a conveyance by a husband and wife to a trustee for the use of the wife during her life and at her death to her two children and the daughter of the husband by a former marriage, under which a portion of the land was sold to satisfy the judgment creditor's debt, did not affect the conveyance as between the parties, and they would be left by equity where they had placed themselves by their deed.

6. JUDGMENT (§ 17)—DEFECTS IN SERVICE OF PROCESS.

Under Rev. St. 1855, c. 12, art. 1, § 23, requiring orders for service by publication to provide for notice to the defendant that his property had been attached, where no such provision was contained in the order, and no mention was made of such notice in the proof of publication or the interlocutory judgment, the court had no jurisdiction, the judgment was void, and the purchaser at a sheriff's sale, pursuant to the judgment, acquired no title, since a judgment rendered in conformity with a statute authorizing a particular proceeding unknown to the common law must conform to the requirements of the statute.

7. ACKNOWLEDGMENT (§ 37)—CONTENTS OF CERTIFICATE — ACKNOWLEDGMENTS OF MARRIED WOMEN.

A certificate of acknowledgment to a deed by a husband and wife to land, in which the husband had or claimed some interest, and in which the wife owned an undivided interest in fee, reciting their presence before the officer and acknowledgment of the instrument, his knowledge that they were the persons whose names were subscribed to the instrument, and that the wife, being first examined, separate and apart from her husband, and made acquainted with the contents of the instrument, acknowledged that she executed it and relinquished her dower freely and without compulsion or undue influence, conformed to Gen. St. 1865, c. 109, § 14, stating the requirements of such acknowledgments.

8. HUSBAND AND WIFE (§ 15)—CONVEYANCES —CONSTRUCTION.

A deed by a husband and wife to land in which the husband had or claimed an interest, and in which the wife owned an undivided interest in fee and an undivided interest for life with remainder to her bodily heirs signed and acknowledged in conformity to the statute then in force, conveyed the land to a trustee for the use of the wife for life and then to the two children of the wife and a daughter of the husband by a former marriage. It used terms, except in the warranting clause, indicating that it was the joint act of both parties. Gen. St. 1865, c. 109, § 2, then in force, required the same method for conveying the wife's real estate as for relinquishing her dower, and provided that no covenant should bind her or her heirs except so far as might be necessary effectually to convey her title and interest. Held, that the deed was the joint deed of the husband and wife, and conveyed the interest owned by her in fee, and did not merely release her dower in the interest claimed by the husband.

9. HUSBAND AND WIFE (§ 11)—HUSBAND'S RIGHTS IN WIFE'S PERSONALITY.

The possession by a husband of a wife's chattels or choses in action which, prior to the married woman's act of 1875 (Laws 1875, p. 61), vested title in him, was necessarily a possession by virtue of the marital relation, and a husband's possession as administrator de bonis non of an estate to which the wife was entitled was not sufficient.

10. TRUSTS (§ 84)—CONSTRUCTIVE TRUSTS— DISPOSITION OF TRUST PROPERTY.

Where an administrator de bonis non of an estate bequeathed to his wife for life, with remainder to her bodily heirs, invested the property of the estate in land, he held it in trust for the wife and her bodily heirs.

11. PARTITION (§ 95)—SUITS FOR PARTITION—VALIDITY OF PROCEEDINGS.

Where an ex parte partition proceeding was brought in the names of all the parties having or claiming an interest in the land, technical objections to its validity would not be entertained, as the parties might have accomplished the same end out of court.

12. WILLS (§ 634)—REMAINDERS—VESTED OR CONTINGENT REMAINDERS.

Where land was devised to a person for life with remainder to her bodily heirs, the remainders were contingent and not descendible, and therefore vested in the sole surviving child of the life tenant living at the time of her death.

Appeal from Circuit Court, Ray County; Francis H. Trimble, Judge.

Action by Ada Hauser and others against Mary L. Murray and husband to determine the title to land. From the decree, the parties bring cross-appeals. Reversed and remanded, with directions.

C. T. Garner & Son and James L. Farris, all of Richmond, for Hauser and others. Lovelock & Kirkpatrick, of Richmond, for Murray and another.

Preliminary.

WALKER, P. J.

Plaintiffs Ada Hauser, David L. and Virginia C. Smith brought suit against defendants Mary L. Murray and her husband, Guy R. Murray, in the circuit court of Ray county, under section 650, R. S. 1899, now section 2535, R. S. 1909, to ascertain and determine the estate, title, and interest of the parties named to the following described land in said county, viz., the southeast quarter and the east half of the southwest quarter, except 52 acres off of the west side of said last-described tract, of section 17; the northwest quarter of the northeast quarter, and the northeast quarter of the northwest quarter, of section 20—all in township 52 of range 27, containing 268 acres more or less.

The Pleadings.

The petition is in the usual form and alleges that the defendants are in the possession of the real estate in question and claim to be the owners of same adversely to the plaintiffs. Wherefore plaintiffs, under the provisions of said section 650, pray the court to ascertain and determine the title, estate, and interest of plaintiffs and defendants respectively in and to said real estate and to adjudge and define the estate, title, and interest of said parties hereto, severally in and to said premises.

The answer admits possession and denies generally all other allegations; pleads the ten years' statute of limitations, and more than 40 years' adverse possession of the premises, with payment of taxes and the making of valuable and permanent improvements thereon next before the commencement of this suit; that Mary L. Murray, defendant, and those under whom she claims, has had possession of said lands ever since title to same emanated from the government more than 75 years next before the commencement of this suit; that the pretended conveyance of one Wm. H. Gunnell of a certain interest in said lands to one John H. Smith, through whom plaintiffs claim title, was paid for with assets and property held by him in trust for Elizabeth B. Smith through whom defendants claim title; and that whatever interest said transfer purported to convey to said John H. Smith was held by him in trust for said Elizabeth B. Smith and her bodily heirs; and that said Elizabeth B. Smith died intestate in 1907 leaving the defendant Mary L. Murray her only child and bodily heir her surviving; and that said Mary L. is the equitable owner in fee of whatever share and estate, if any, was acquired by or through said transfer. Defendants have no knowledge as to whether said Wm. H. Gunnell was an heir of Wm. M. Gunnell, the common source of title, and ask that plaintiffs be held to strict proof in regard thereto; that, if said Wm. H. Gunnell was an heir of said Wm. M. Gunnell, whatever share or estate was transferred, if any, by Wm. H. Gunnell to John H. Smith, inured to the benefit of Elizabeth B. Smith and her bodily heirs, and that defendant Mary L. Murray as such bodily heir is the equitable owner thereof; that defendants are informed that plaintiffs claim some share, interest, or estate in and to said lands through a pretended sheriff's deed to said John H. Smith; that said deed was based upon a sale under an attachment proceeding in which the sheriff of Ray county undertook to sell the interest and estate in a part of said lands of John C. Gunnell, a brother and heir of Wm. M. Gunnell, under and by virtue of said proceeding which was commenced by publication in the circuit court of said county by John H. Smith against the property of said John C. Gunnell, a nonresident of this state; that the judgment in said suit was void; that said John C. Gunnell was not served with process, did not appear, and the court did not have or obtain jurisdiction over his property...