Jamison v. Culligan

• Decision Date: 12 July 1899
• Citation: 52 S.W. 224,151 Mo. 410
• Parties: Jamison, Administrator, Appellant, v. Culligan et al
• Court: Missouri Supreme Court

52 S.W. 224

151 Mo. 410

Jamison, Administrator, Appellant, v. Culligan et al

Supreme Court of Missouri, First Division

July 12, 1899

Appeal from Jackson Circuit Court. -- Hon. John W. Henry, Judge.

Affirmed.

A. M Allen and W. F. Allen for appellant.

(1) Irregularities or informalities in the petition by the union of two causes of action in one count are waived by pleading to the merits. Anderson v. McPike, 41 Mo.App. 331; Paddock v. Somes, 102 Mo. 235; Young Men's etc., v. Dubach, 82 Mo. 475; Grove v. City of Kansas, 75 Mo. 672; R. S. 1889, sec. 2047; Williams v. Fisher, 50 Mo. 198; House v. Lowell, 45 Mo 381. (2) Improper joinder of parties should be taken advantage of by demurrer, as the defect appears upon the face of the petition, or the same is waived, and can not be taken advantage of at the trial. Bensieck v. Cook, 110 Mo. 182; Boland v. Ross, 120 Mo. 208; R. S. 1889, secs. 2043 and 2047; Blair v. Railroad, 89 Mo. 394.

C. H. Nearing for respondents.

(1) The defect of parties did not appear on the face of the pleadings and could not have been raised by demurrer. (2) When a conveyance is made in ignorance of the insanity of the maker, with no advantage having been taken and with perfect good faith, equity will not set it aside, if the parties can not be restored to their original position and if injustice would be done. Blount v. Spratt, 113 Mo. 48. (3) The deed of an insane person, made before inquest, is voidable, not void, though the grantee paid no consideration and knew the grantor's condition. McArrow v. Tiffin, 143 Mo. 667; Rhodes v. Fuller, 139 Mo. 181; Wells v. Mut. Benefit, 126 Mo. 637; Bank v. Moore, 78 Pa. St. 407; Parker v. Marco, 76 F. 510; 1 Story, Eq. Juris., sec. 228; 2 Pomeroy, Eq. Juris., sec. 946; 11 Am. and Eng. Ency. of Law, 136; Tucker v. Morehead, 10 Pet. 358.

OPINION

VALLIANT, J.

This suit was commenced by Jeremiah Collins and Martha his wife as plaintiffs; Martha died and afterwards Jeremiah died; Jamison was appointed administrator of Jeremiah's estate, and the suit was revived in his name as sole plaintiff. The administrator filed an amended petition in three counts which, omitting descriptions of land, is as follows:

"Plaintiff states that on the 15th day of September, 1883, Jeremiah Collins and Martha Collins, deceased, were the owners and in possession of the following described real estate, to wit [Description.] Plaintiff states that on or about the day of , 1888, Jeremiah Collins and Martha Collins, deceased, borrowed the sum of two hundred dollars from Louis Holmes, and the same was secured by deed of trust filed of record in the recorder's office of Jackson county, Mo., in book "B" 326, at page 288, and they at divers other times borrowed from said Holmes to the amount of one hundred and twenty-five dollars, and that said Jeremiah Collins and Martha Collins, deceased, sold to the defendants herein, Edmund Culligan and Margaret Culligan, his wife, for the sum of six hundred and fifty dollars, a part of the land hereinbefore described, as follows [Description], in order to pay said Holmes. After paying said Holmes, there remained due plaintiff the sum of two hundred dollars, wherefore plaintiff prays judgment for the sum of two hundred dollars and interest thereon, from January 19th, 1891, at 6 per cent per annum against said defendants.

"Plaintiff further says Jeremiah Collins was over one hundred years of age, and his wife, Martha, about eighty years of age. That on or about the 6th day of June, 1892, the defendants, Edmund Culligan and Margaret Culligan, his wife, and C. H. Nearing, trustee, filed for record in the recorder's office of Jackson county, Mo., a deed of trust in book "B" 482, at page 208, purporting to secure a note of one hundred and fifty dollars, on the following described real estate, to wit [Description.] Plaintiff says that the deed of trust is wholly without consideration and the same was not the act and deed of the said Jeremiah Collins deceased. Plaintiff says that the signature of Martha Collins to the deed of trust was obtained through threats and fear that said defendants would do her great bodily harm, and further says that the pretended signature of Jeremiah Collins, deceased, is not his and was never authorized by him, that he never signed any deed of trust purporting to bear his signature or any note secured by said pretended deed of trust, and that said deed of trust purporting to secure them was and is fraudulent and void, and casts a cloud upon plaintiff's title, and plaintiff says that at the date of the alleged deed of trust the said Jeremiah Collins, deceased, was of unsound mind and incapable of contracting. Wherefore plaintiff prays that said pretended deed of trust be declared null and void and held for nought, and the note be ordered to be delivered up and canceled.

"Plaintiff further states in reference to the deed of trust dated the 21st day of November, 1892, executed to C. H. Nearing, for Edmund Culligan and Margaret Culligan, his wife on the following real estate to wit [Description], recorded in the office of the recorder of Jackson county, Mo., in book "B" 482, at page 526, which deed of trust purporting to secure a note due defendants for the sum of three hundred dollars, but which sum in fact is not due Edmund Culligan and Margaret Culligan, that said Jeremiah Collins and Martha Collins never borrowed any money from defendants and never owed them any, and the signature to said pretended note of three hundred dollars, and said pretended deed of trust, was not their signature and was never authorized by them, and plaintiff further says that they never signed, acknowledged, or delivered said pretended deed of trust dated November 21st, 1892, and at all times said Jeremiah Collins, deceased, was wholly incapable of transacting any business on account of old age and other mental disabilities and said signatures to the pretended deeds of trust were and are fraudulent and void; and the same are not their signature and were never authorized by them.

"Plaintiffs say that C. H. Nearing...