Hoyt v. Oliver
| Decision Date | 28 February 1875 |
| Citation | 59 Mo. 188 |
| Parties | JOHN H. HOYT, Plaintiff in Error, v. THOS. E. OLIVER, et al., Defendants in Error. |
| Court | Missouri Supreme Court |
Error to Livingston Circuit Court.
Collier & Mansur, for Plaintiff in Error.
II. The deed cannot be considered on demurrer. If it could, the want of seal cannot; but must be taken advantage of by answer. (Smith vs. Hart, 1 Mo., 274.)
III. An inchoate right of dower does not require the wife's joinder.
John E. Wait, for Defendants in Error.
I. The notes were made and accepted weeks before date of the deed of trust and formed no consideration for the deed; and being voluntary, it cannot be reformed and thereby vest the wife's dower, without giving her a day in court.
This proceeding was instituted to correct a mistake made in a certain deed of trust by which Messer, who was to have been named therein, as cestui que trust, was named as trustee, and Russell, who was to have been named therein as trustee, was named as cestui que trust.
The petition alleges in substance, that Oliver being indebted to Messer, had executed to him a promissory note for $600, on the 4th day of April, 1870; and, being the owner of certain real estate, ten days after, for the purpose of securing the debt, executed the deed referred to, but that by mistake of the scrivener, the intention of the parties was frustrated in the manner above set forth. A prayer is then made for the reformation of the deed, etc., etc.
Prior to suit brought, the note, to secure which the deed of trust was given, was assigned to plaintiff.
1. There was no necessity to make the wife of Oliver a party to the suit. The petition shows that he was the owner of the property and, as a matter of course, the only possible interest which the wife could possess, was an inchoate right of dower. (Riddick vs. Walsh, 15 Mo., 519.)
2. The deed of trust constituted no part of the petition; and therefore no objection could be raised to that deed in the manner attempted.
3. The rule is a familiar one, in reference to the powers which courts of equity exercise for the reformation of instruments in conformity to the intention of the parties thereto. ( And while it is true that courts of equity will not rectify a voluntary deed, unless...
To continue reading
Request your trial
-
Blevins v. Smith
...covering the proceeding in question." Since this decision the question has not been mooted in this state. In 1875 in the case of Hoyt v. Oliver, supra, it was that a wife was not a necessary party to a suit to correct a deed of trust given on the land of the husband. In the case of Bailey v......
-
Bakewell v. Clemens
... ... 790. (3) One who claims as a donee has no ... right to reformation as against her alleged donor ... Bartlett v. White, 272 S.W. 944; Hoyt v ... Oliver, 59 Mo. 188; 53 C.J., sec. 120, p. 978. (4) Where ... a confidential relationship exists no presumption of undue ... influence ... ...
-
Fanning v. Doan
...party against whom he seeks it. 15 Am. and Eng. Ency. of Law, 678, and note 2; Henderson et al. v. Dickey et al., 35 Mo. 120; Hoyt v. Oliver et al., 59 Mo. 188; Brocking v. Straat, 17 Mo.App. 296; Rhodes Outcalt et al., 48 Mo. 367; 1 Story's Eq. [9 Ed.], secs. 176, 164, 793d; The German Mut......
-
Bakewell v. Clemens, 39560.
...(3) One who claims as a donee has no right to reformation as against her alleged donor. Bartlett v. White, 272 S.W. 944; Hoyt v. Oliver, 59 Mo. 188; 53 C.J., sec. 120, p. 978. (4) Where a confidential relationship exists no presumption of undue influence arises unless the contract results i......