Hunt v. Searoy

• Decision Date: 19 February 1902
• Citation: 67 S.W. 206,167 Mo. 158
• Parties: HUNT et al. v. SEAROY et al.
• Court: Missouri Supreme Court

67 S.W. 206

167 Mo. 158

HUNT et al. v. SEAROY et al.

Supreme Court of Missouri, Division No. 1.

February 19, 1902.

EJECTMENT — DEEDS — SIGNATURE — NAMES — SUFFIXES — PRESUMPTION — INSTRUCTION — ESTOPPEL — LIMITATIONS — INSANE PERSONS — INQUISITION IN LUNACY — NOTICE — CONSTITUTIONAL LAW — DUE PROCESS OF LAW — EVIDENCE.

1. It was error to instruct that, if a father adopted the suffix "Sr." to distinguish himself from his son, the law presumed a deed to property owned by the father, executed without the suffix, to be the deed of the son, and that it devolved on plaintiffs, claiming it was the father's, to establish their claim, where there was no evidence of such adoption.

2. The instruction was incorrect, since identity of name is prima facie evidence of identity of person, and it was for defendant to establish the contrary.

3. The instruction was incorrect because the suffix "Sr." is no part of a name.

4. Defendants could not complain of erroneous instructions given at their request.

5. The presumption that a deed signed by M. and by his wife, J., was the deed of M., and not that of his son of the same name, was not overcome by the fact that the acknowledgment did not describe J. as the wife of M., and was not in the form required by the statute relating to deeds by married women, as such facts merely tended to show the deed void as to the wife.

6. The presumption was not overcome by the recital in the deed, "the whole of the above-described tract of land is not conveyed only during J. life time M. part is forever conveyed to R. and her bodderly heirs," as such expression, in its entirety, purports to convey the whole part during the life of J., and M.'s part forever, thus showing that J. had an interest, as distinguished from her husband's; and the expression "M. part" did not show that it was the son conveying his interest in expectancy.

7. Plaintiffs in ejectment claimed under a deed from a former owner to their mother for life with remainder in fee to plaintiffs. There were deeds from plaintiffs' mother to defendants' grantor, but defendants claimed title by limitations, and contended that the deed to the mother and to plaintiffs was void because the former owner was at its date an insane person in ward. Held, that they were not estopped from making such contention, no estoppel being pleaded.

8. Defendants claimed by limitations, and not under the deed, and therefore were not estopped from questioning its validity.

9. The defendants were not estopped from assailing such deed of the former owner by the admission of the deeds by the mother, since, if her deeds were after the father's death, the time of which was unknown, they were sufficient to convey her interest as heir, and cut out the rights of plaintiffs, who were her children.

10. That an inquisition in lunacy was pending for 10 years did not invalidate the judgment.

11. Rev. St. 1845, p. 593, c. 85, tit. "Insane Persons," § 3, providing that in proceedings thereunder the county court may, "in its discretion," cause the person alleged to be of unsound mind to be brought before the court, and not requiring notice to such person, was contrary to the constitutional provision that no person shall be deprived of life, liberty, or property without due process of law; and an adjudication thereunder in 1852, in proceedings the record of which failed to show notice, or that the person adjudged insane was brought before the court, was void.

12. Rev. St. 1879, p. 1133, c. 116, § 5789, providing that an alleged insane person must be notified of proceedings to determine his sanity, "unless the probate court order such person to be brought before the court, or spread on the records of the proceedings the reason why such notice or attendance was not required, is, on account of the qualification, violative of the constitutional provision that no person shall be deprived of life, liberty, or property without due process of law.

13. Plaintiffs in ejectment claimed under a deed from a former owner conveying to plaintiffs' mother a life estate, with remainder in fee to plaintiffs. The mother conveyed to defendants' grantor; but defendants claimed by limitations, and contended that the deed to the mother and to plaintiffs was void because the owner was at the time an insane person in ward. Held, that defendants could not introduce evidence that the owner was an insane person not in ward; not having raised such issue, and having no right to raise it.

Appeal from circuit court, Ray county; E. J. Broaddus, Judge.

Ejectment by Eva Ann Hunt and others against John Searcy and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

J. L. Farris & Son, for appellants. T. B. Ellis and Frost & Frost, for respondents.

MARSHALL, J.

Ejectment for a portion of the N. W. ¼ of the N. E. ¼ of section 17, township 53, range 28, in Ray county. The suit was begun October 17, 1898, and the ouster is laid as of the ____ day of February, 1897. The plaintiffs are the bodily heirs of Jane Rowland, who died in February, 1897. The defendant Searcy is the tenant in possession under the administrators of E. P. Tiffin, and the other defendants are the heirs of E. P. Tiffin. The petition is in the usual form. The answer of Searcy disclaims any interest in the land, and sets up his tenancy. The answer of the other defendants is a general denial, and a special plea of the 10-year statute of limitations. The case was tried by the court, a jury being waived, and resulted in a verdict and judgment for the plaintiffs, from which the defendants appealed.

The plaintiffs' mother, Jane Rowland, was a daughter of Michael Turnage (or, as it seems to sometimes be spelled, Tunage) and Jemima, his wife. Michael Turnage, Sr., and Jemima, his wife, had other children besides Jane Rowland, to wit, Michael Turnage, Jr., and Sultana Turnage, who married Rube Holman, both of whom are still living. Michael Turnage, Sr., died in 1869 or 1870, or 1876 or 1877, — it is not clear which. Michael Turnage, Sr., acquired the land in controversy by a deed from Robert Rockhole, the original patentee, dated March 28, 1838. The plaintiffs claim title by virtue of the following deed:

"This indenture made this 29th day of December in the year of our Lord one thousand eight hundred and sixty three, by and between Jemima Tunage and Michael Tunage of the county of Ray, in the State of Missouri, of the first part, and Jane Rowland, of the county of Ray, and State of Missouri, of the second part. Witnesseth, That the said Jemima Tunage and Michael Tunage for and in consideration of the sum of one hundred dollars to them in hand paid, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell, convey and confirm unto the said Jane Rowland and her bodderly heirs and assigns forever, all that piece or parcel of land situated and being in the county of Ray, in the State of Missouri, being known and designated as follows: The northwest quarter of the northeast quarter of section No. seventeen, of township fifty-three, in range twenty-eight, together with all and singular, the appurtenances thereto belonging or in anywise appertaining, to have and to hold the above described premises unto the said Jane Rowland and her bodderly heirs, and assigns forever all of their interests in said lands aforesaid, premises unto the said Jane Rowland and her bodderly heirs, and assigns, against all lawful claim or claims of all and every person whomsoever do and will warrant and forever do find by their presents in witness whereof the said parties of the first part have hereunto set their hands and seals the day and year first above written, the whole of the above described tract of land is not conveyed only during Jemima Tunage life time Michael part is forever conveyed to Jane Rowland and her bodderly heirs.

                                  her
                          "Jemima  X  Tunage.  [Seal.]
                                  mark
                                   his
                         "Michael  X  Tunage.  [Seal.]
                                  mark
                

"State of Missouri, County of Ray — ss.: Be it remembered that on this twenty-ninth day of December in the year of our Lord one thousand eight hundred and sixty-three, before me, R. A. Crenshaw, and acts Justice of the Peace within and for the County of Ray, personally appeared Jamima Tunage and Michael Tunage, who are personally known to me to be the persons whose names are subscribed to the foregoing deed as having executed the same as parties thereto, and severally acknowledged the same to be their act and deed for the purpose therein mentioned.

                                    R. A. Crenshaw, J. P
                

"Taken and certified the day and year first above written.

                                  "R. A. Crenshaw, J. P
                

"Filed for record April 25th, A. D. 1866."

The claim of the plaintiff is that this is a deed from Michael Turnage, Sr., and Jemima his wife, and that it vested a common-law estate tail in Jane Rowland, with a remainder in fee in the plaintiffs, as her bodily heirs, and which, by the statute then in force in this state, vested a life estate in their mother, Jane Rowland, with a remainder in fee in them, and that their mother conveyed her life estate to E. P. Tiffin, under whom the real defendants claim, in 1872 and in 1875, and that such life estate terminated with the death of their mother in February, 1897, and then for the first time their right of action accrued, and hence their claim is not barred by limitation, as the defendants aver in their answer. On the other hand, the contention of the defendants is that the deed aforesaid does not purport to be made, and was not in fact made, by Michael Turnage, Sr., but, on its face, shows that it was made by Michael Turnage, Jr., and by Jemima Turnage during the lifetime of Michael Turnage, Sr., and hence it conveyed only the inchoate right of dower of said Jemima Turnage (under the later decisions she could convey her right to admeasurement of dower, but not a right to the possession of the land...