Hutsell v. Crewse
| Citation | 39 S.W. 449,138 Mo. 1 |
| Parties | Hutsell et al. v. Ellen R. Crewse et al., Plaintiffs in Error |
| Decision Date | 09 March 1897 |
| Court | United States State Supreme Court of Missouri |
Error from the Wright Circuit Court. -- Hon. W. I. Wallace, Judge.
Affirmed (with directions).
William O. Mead and T. T. Loy for plaintiffs in error.
(1) The petition does not state a cause of action in that it does not allege that defendants are the heirs of R. M. Crewse or that R. M. Crewse is dead, and no testimony was admissible, and the fact that plaintiffs took leave of the court to amend their petition would not make any testimony admissible. (2) The facts and circumstances detailed in evidence negative the presumption of delivery of the deed sought to be reformed. This court will not permit the judgment of the lower court to stand unless the facts proven be such as would raise a resulting trust in R. M. Crewse for the use and benefit of his grantee, under whom plaintiffs claim by inheritance, and to raise such resulting trust (even though a valuable consideration had been paid) the testimony must be so clear cogent and convincing as to leave no reasonable ground for hesitation in the mind of the chancellor. Johnson v Quarles, 46 Mo. 423; Forrester v. Scoville, 51 Mo. 268. (3) The testimony is clear and conclusive that no consideration passed for the deed sought to be reformed. It was purely a voluntary conveyance, and it is equally clear that R. M. Crewse never surrendered the possession of the premises in question and even though the deed had been delivered it will not be reformed for that reason. 2 Rapalje and Lawrence Law Dictionary, p. 1338 (title) voluntary; Anderson v. Green, 23 Am. Dec. 417; Dawson v Dawson, 18 Am. Dec. 573; Stone v. King, 84 Am. Dec. 557. (4) The testimony proves that the defendant, Ellen Crewse, married J. M. Farmer since the commencement of this suit, and that her husband was not brought in or the cause revived. (5) There is no question but the defendants, Samuel, Charles, and Martha Crewse, are infants, and as they do not appear either in person, by counsel or guardian, no decree could be rendered against them.
Nickle & Pope for defendants in error.
The plaintiffs in this action are the children of R. M. Crewse late of Wright county, deceased, by his first wife; and the defendants are the second wife of said deceased and her children by him.
On the first day of September, 1879, and during the lifetime of his first wife, the said R. M. Crewse executed several deeds to each of his children by her, to lands which he owned in Missouri, and among them one to his daughter Emily C. Crewse, who was then a minor, for a tract in Wright county, described in the petition as being a part of his home place. In this deed the numbers of the township and range were omitted. Sometime afterward his wife died, and he married again. After his second marriage he continued to reside at the same place with his second wife and his children by her until the year 1884, when he died, leaving them in possession of the premises. Afterward on the seventh day of August, 1889, this suit was instituted, in which the plaintiffs asked to have the deed of Emily C. Crewse corrected, by inserting the numbers of the township and range omitted as aforesaid, and that any title that the defendants may have in said land as the heirs of Rufus M. Crewse be divested from them and invested in the plaintiffs. On the hearing the court granted the prayer of the petitioners, and the defendants failing to secure a rehearing on proper motion for that purpose, bring the case here by writ of error.
1. On the trial, defendants objected to the introduction of any testimony in the case "for the reason that there is no allegation that R. M. Crewse is dead, and no allegation that these defendants are the heirs of R. M. Crewse." Immediately following this objection in ...
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