International Bank of St. Louis v. Fife

• Decision Date: 21 May 1888
• Citation: 8 S.W. 241,95 Mo. 118
• Parties: International Bank of St. Louis, Appellant, v. Fife et al
• Court: Missouri Supreme Court

8 S.W. 241

95 Mo. 118

International Bank of St. Louis, Appellant, v. Fife et al

Supreme Court of Missouri

May 21, 1888

Appeal from St. Louis City Circuit Court. -- Hon. Amos M. Thayer Judge.

Affirmed.

Louis Gottschalk for appellant.

(1) The defence of the statute of limitations is waived by the answer, as inconsistent with the equitable defence and prayer for deed. Adair v. Adair, 78 Mo. 630, 635. (2) There cannot be color of title to land, except by deed or writing. Fugate v. Pierce, 49 Mo. 441; Crispen v Hannovan, 50 Mo. 536; Long v. Higginbotham, 56 Mo. 245. The case of Rannels v. Rannels, 52 Mo. 108 if in conflict with this rule of law, should be overruled. It is commented upon and criticized in Sedgwick & Wait on Trial of Titles to Land [2 Ed.] section 773, page 642. (3) A donee of land, under circumstances, such as defendants', holds the property permissively, and the statute of limitations does not run against any grantee of the donee made before title by limitation has accrued. Such donation is liable to be revoked at any time within ten years, and a conveyance to a third party by deed is such revocation. Jackson v. Rogers, 1 Johns. (N. Y.) 33; Clark v. McClure, 10 Gratt. 305; Nowlins v. Reynolds, 25 Gratt. 137; 2 Jones' Eq. 323; Billington v. Walsh, 57 Ala. 307; 5 Binney, 129; Sedgwick & Wait on Titles, p. 607, sec. 751. And defence of adverse possession forfeits right to notice to quit. (4) Plaintiff being a purchaser for value and without notice takes superior title, and defendants are estopped by their neglecting to take steps to compel Hymers to make deeds to them, and permitting him to hold himself out as owner and to borrow money on this lot, and execute mortgages thereon with their knowledge, thus assisting him to defraud innocent persons, trusting to the record title. Sedgwick & Wait on Trial of Titles [2 Ed.] p. 708, sec. 244; Ridgway v. Holliday, 59 Mo. 447, 453; 1 Story Eq., secs. 385, 389; Bigelow on Est., sec. 493, note; 1 Hermann on Est., secs. 939, 943, 951, 952, 954, 958, 965, 917, 929. Also by defendants failing to pay taxes and permitting property to be assessed in name of Hymers and to insure in his name. Gaines v. Saunders, 87 Mo. 557. (5) Possession of defendants was no notice to plaintiff. The court found this in favor of plaintiff. Staples v. Fenton, 5 Hun (N. Y.) 112; Beattie v. Butler, 21 Mo. 313; Vaughn v. Tracy, 22 Mo. 415; Whitman v. Taylor, 60 Mo. 135.

T. A. Russell for respondents.

(1) The plea of the statute of frauds will not avail appellant. The part performance was sufficient to take the case out of the statute. Young v. Montgomery, 28 Mo. 604; Self v. Cordell, 45 Mo. 345; Gupton v. Gupton, 37 Mo. 47; Adair v. Adair, 78 Mo. 633. (2) The conveyance in question was good as a simple gift. Rannels v. Rannels, 52 Mo. 109; Freeman v. Freeman, 51 Barb. 306; Mahon v. Baker, 26 Pa. St. 519. (3) The appellant was not an innocent purchaser without notice. The possession of the land by respondents was sufficient to put him on inquiry. Vaughn v. Tracy, 22 Mo. 415; Speck v. Riggin, 40 Mo. 405; Martin v. Jones, 72 Mo. 23. (4) Respondents are protected by their ten years' adverse possession. Nelson v. Brodhack, 44 Mo. 596; Ridgeway v. Holliday, 59 Mo. 444.

OPINION

Ray, J.

This is an action of ejectment, the petition being in the ordinary form to recover from defendants the possession of a house and lot situated in North St. Louis, Missouri. The answer sets up the statute of limitations, and also an equitable defence, in substance that one Hymers, who is the common source of title, was left an orphan without means; "that he was supported by defendants without compensation; that he afterwards became prosperous, and in 1871 was indebted to defendant, Wm. G. Fife, in the sum of about sixteen hundred dollars; that, when said claim was presented, said Hymers admitted its correctness, and proposed that, in consideration of the great services rendered him by defendant in providing for him when a child, and also the release of said claim, to convey to defendant, Sarah J. Fife, by deed in fee, the property in dispute; that said proposition was accepted and said claim released; and that, on or about July 8, 1872, possession of said property was delivered to defendant, Sarah, by Hymers; and that said Sarah has been in peaceable possession ever since, and has made improvements thereon, but that said Hymers has never made a deed, notwithstanding several requests, to which said Hymers always made some excuses, but always recognized the ownership of said defendant, Sarah, and that he, on July 15, 1880, without the knowledge of defendant, undertook to convey said property by deed, together with other property in trust, to secure the payment of a debt due by him to plaintiff; that, in default of the payment of said debt, the right and title of said Hymers to said property was sold, and by trustee's deed conveyed to plaintiff, and that this constitutes the title of plaintiff. Also, that, at the time of the making of said deed of trust, defendant had been in possession for about eight years, and that plaintiff knew, or might, by proper diligence, have known, the fact that defendant claimed said property, and that when plaintiff purchased the same, it had notice of all these facts and of defendant's equitable title."

Plaintiff read in evidence at the trial, the record title, which was formal and regular, and consisted of a deed of trust from Hymers to Lange and Leise for the benefit of plaintiff, dated and recorded in July, 1880, on the property in question, with other property, to secure a certain note for twenty-three thousand dollars, publication of notice of sale and deed of said trustees to plaintiff, dated in March, 1884, conveying the property in dispute. Said Hymers had given a former deed of trust to one Mills on the property, which was dated, acknowledged, and recorded in November, 1872, which was discharged, out of the funds borrowed from plaintiff, and released at the date of the trust deed in favor of plaintiff. Said first trust deed, in favor of Mills, was also read in evidence by plaintiff. The defendants went into possession of the premises, under claim of title from said Hymers, in July, 1872, more than ten years prior to the institution of this suit, and have ever since maintained their possession. The origin and nature of their equitable claim of title is sufficiently indicated by the abstract of the answer already given, which, together with the statute of limitations, as indicated, constitute the defence to the action. The evidence in this behalf will be noticed hereafter.

The case was tried by the court, without the aid of a jury, and the following action had, upon declarations of law. At the instance of plaintiff, the court gave those numbered one and four as follows:

"1. If the court believes from the evidence that Hymers gave the property in question to defendants, or one of them, to have and enjoy the same during life, and that plaintiff had no notice of such gift prior to its purchase, then such gift is no defence to plaintiff's claim."

"4. If defendants knew that Hymers, on the strength of his record title to the lot in question (and which was claimed by defendants as their own, under a parol gift from Hymers), contracted a loan from another party (who knew nothing of defendants' claim), to secure said loan, executed a deed of trust on said lot, without objecting thereto, or without taking any means to remove the cloud on their title, caused by the existence of the record title, and if plaintiff purchased said lot at a sale under such deed of trust of Hymers, then said defendants are equitably estopped from asserting any claim against said plaintiff for said lot."

The court also gave at the instance of defendants the following:

"If the jury believe from the evidence, that Hymers gave the property in question to Mrs. Sarah J. Fife, and delivered the possession of the premises described in the petition to the defendant, Sarah J. Fife, and at the time promised to convey the same to her, and that defendants went into possession, claiming title according to such gift, and that such possession continued for a period of over ten years before the filing of the petition in this cause, and that such possession was notorious, visible, and actual for that period, then the court declares that said possession is adverse, and the jury should find for defendants."

Of its own motion the court also gave the following:

"5. If the court finds that the deed of trust referred to in instruction number four, was made and executed by Hymers without the knowledge or assent of the defendants, then the fact that the defendant took no action to contest the validity of said deed of trust, or to remove the cloud upon her title, after she discovered the execution of said deed of trust, will not prejudice her defence under the statute of limitations."

The court refused to give instructions numbered two and three, asked by plaintiff, and as follows:

"2. If the court believe from the evidence, that Hymers had, in 1872, the record title to the lot in question, and in that year gave the same by parol to Mrs. Fife, and that in pursuance thereof he delivered possession thereof to her yet, if a few months thereafter, said Hymers, for a valuable consideration, executed the deed of trust read in evidence, by which said property was conveyed to secure the payment of a certain loan, and that said deed of trust was duly recorded, and defendants knew of this shortly after such execution, but took no steps to contest the validity of the same; and if plaintiff, afterwards, on the strength of such record title, and without notice of defendants' claim, advanced to said Hymers a large amount of money, which...