Hiler v. Cox

• Decision Date: 01 April 1908
• Citation: 109 S.W. 679,210 Mo. 696
• Parties: HILER et al. v. COX et al.
• Court: Missouri Supreme Court

109 S.W. 679

210 Mo. 696

HILER et al. v. COX et al.

Supreme Court of Missouri, Division No. 1.

April 1, 1908.

1. APPEAL — REVIEW — ESTOPPEL TO ALLEGE ERROR—AGREEMENT.

A husband and wife both died intestate. Plaintiffs brought a partition suit, asking that the real estate left by the deceased be distributed in accordance with the law of descent. The wife was indebted to one of the defendants, her son. The only question was whether the wife absolutely owned a part of the real estate so as to make it subject to the debt due the son. The judgment was entered in accordance with an agreement between the parties that the property be sold and the proceeds distributed, except an amount equal to the debt due the son, which should be placed with a trustee until the son's appeal be determined, and the judgment was executed and a deed given to the purchaser. Held, that appellant, by his consent to the judgment, waived his right to have the judgment as an entirety reversed, the grounds upon which the partition was made not being up for consideration.

2. SAME.

If an appellant pays off a money judgment or consents that a judgment be executed and agrees to abide the execution of the judgment, then by that act he "kills" any issue on appeal going to the validity of the judgment itself.

3. SAME.

A husband and wife died intestate. Plaintiffs brought suit for partition of their real estate in accordance with the law of descent. The wife was indebted to one of the defendants, her son. A deed to part of the real estate which had never been recorded was destroyed by fire. The only disputed question was whether the husband or the wife was the grantee in the deed. The parties agreed that the property be sold and the proceeds distributed, with the exception of an amount equal to the debt due, the son, which should be placed with a trustee until the son's appeal was determined, and judgment was rendered accordingly and carried out. The appellant insisted that the action was a suit at law, and not in equity, and that the title being an equitable one, if any, because the deed was never recorded, the suit should have been tried out in chancery. Appellant did not set up an equitable title in his mother, and ask on that account affirmative equitable relief. Held, that appellant, by agreeing to the partition and sale, waived the right to raise the point upon which he insists.

4. PARTITION — PROCEEDINGS—JURISDICTION—COURTS OF EQUITY.

In such case it was conceded that the deed was executed by delivery, that possession was taken by the deceased, and that not only title was conveyed by the deed to some one, but that, by the adverse and peaceable possession of half a century, the statute of limitations had created legal title in the heirs of the deceased as against the grantor's heirs. Held, that the title was not an equitable one requiring the suit to be tried in chancery; the title being legal whether evidenced by the destroyed deed or created by the statute of limitations.

5. DEEDS — REQUISITES — DELIVERY—OPERATION AND EFFECT.

A deed speaks by delivery, the record of a deed not creating title, but merely imparting notice of the title, because, by Rev. St. 1899, §§ 924, 925 (Ann. St. 1906, pp. 846, 847), the deed as between the parties is good without recording.

6. EVIDENCE — BEST AND SECONDARY EVIDENCE — ADMISSIONS AS TO CONTENTS OF WRITINGS.

On the issue whether a deed destroyed before record ran to a husband or to his wife, plaintiffs were permitted to show by parol that the conveyance ran to the husband, and to introduce the inventory filed by the husband's administrator, which showed that the land in dispute was a part of the father's estate. Rev. St. 1899, § 69 (Ann. St. 1906, p. 361), makes it the duty of an administrator to inventory the real estate of the deceased. Held, that the parol testimony and the inventory were admissible; the proof of the destruction of the deed and that it was unrecorded being a sufficient foundation for the introduction of secondary evidence.

Appeal from Circuit Court, Lincoln County; H. W. Johnson, Judge.

Suit by Pinkie Hiler and others against Silas R. Cox and others to partition certain real estate. From a decree partitioning the land as prayed in the petition, Silas R. Cox appeals. Affirmed.

Chas. Martin, for appellant. Norton, Avery & Young, for respondents.

LAMM, J.

This is a suit to partition real estate in Lincoln county. The petition alleges: That plaintiffs and defendants are the owners of, and tenants in common in, 94 acres of land (describing it) in two tracts —one of 40 and the other of 54 acres. That certain of plaintiffs and defendants are each entitled to an undivided one-seventh thereof. That certain of defendants are each entitled to an undivided one forty-ninth thereof, subject to a dower interest in another defendant. It is not alleged who the ancestors of these parties were, or how their title originated. It was alleged that the land could not be partitioned in kind equitably, and a decree of partition and order of sale were prayed. Defendant Silas R. Cox filed a general denial, and alone appeals from a decree partitioning the land as prayed in the petition. At the trial it was shown that certain of plaintiffs and defendants (including Silas) were children and heirs of James R. Cox and Eliza Cox, his wife, both deceased and both dying intestate; that certain of the defendants were the children of James Cox, a deceased son of James R. and Eliza; that one of the plaintiffs, Colbert, had purchased the interest of John W. Cox, another son of James R. and Eliza. On all hands it is agreed that the title to the 40 was in James R. Cox at the date of his death in December, 1864. There is no dispute as to the names of the heirs of James R. and Eliza Cox, and it appears they are all parties litigant. The only issue at the trial was whether the 54-acre tract belonged to James R. Cox or to Eliza, his wife. It appears the land would descend to the same heirs with the same undivided interest in each whether it belonged to the father or the mother; the heirs and the tenancy in common being the same either way. The mother died some four years before the partition suit. As we gather, she owed her son, Silas, a certain amount. If she owned the 54-acre tract, then her title would descend subject to the payment of that debt; an administration of her estate being pending. On the contrary, if she held a life estate, as a homestead or otherwise, then, that life estate falling in, the heirs of James R. Cox take title by descent cast, and Silas loses his debt. It is agreed, further, that the title to the 54 acres was originally in one Joseph East; that he conveyed it in 1849 or 1848 to either James R. or Eliza. There is no question but what this deed was made and delivered. All parties claim under it. It was in the possession of James R. until his death in 1864. It remained in the possession of his widow, Eliza, and of the family afterwards until the year 1875, when it was destroyed by a fire burning the family residence, and never was put of record. Plaintiffs put in proofs tending to show that James R. Cox was grantee in that deed. The defendant Silas introduced evidence tending to show that Eliza Cox was grantee in that deed. Appellant objected to plaintiffs' testimony on that score. If, now, plaintiffs' evidence was competent under the pleadings, the judgment was right. If not competent, the judgment may be wrong. The case was tried as a law case to the court sitting as a jury on an issue of fact, and we ought not to disturb the finding of the lower court, on review, on the mere weight of the testimony, though in this case it may with propriety be said that the testimony was strongly in favor of plaintiffs' theory and the finding nisi. No instructions were asked or given. No finding of facts was asked or made. If, then, on any possible allowable view the judgment can be sustained, it should be.

1. The judgment...