Marshall v. Hill
| Decision Date | 26 November 1912 |
| Citation | 151 S.W. 131,246 Mo. 1 |
| Parties | LEANDER J. MARSHALL et al., Appellants, v. NORMAN N. HILL, JR., et al |
| Court | Missouri Supreme Court |
Editorial Note:
This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.
Appeal from St. Francois Circuit Court. -- Hon. Charles A. Killian Judge.
Reversed and remanded (with directions).
H. J Cantwell, Warren D. Isenberg and A. C. Ketring for appellants.
(1) The petition in this cause alleges fraud, the evidence conclusively establishes fraud in the procuring of the judgment and in all of the acts of Hill prior thereto. A court of equity would have had and still has power to set aside a decree obtained under the circumstances herein, and we are strictly within the terms of the statute, having brought our petition for review within three years and defendants herein are not and cannot be prejudiced by reason that we assume the laboring oar and set up all of the facts in order to avoid a multiplicity of suits. Miles v. Jones, 28 Mo. 87; Baldwin v. Dalton, 168 Mo. 25; Irvine v. Leigh, 102 Mo. 200; Sec. 777, R.S. 1899. (2) The patent inured to the benefit of Hill's grantee, i. e., Leander J. Marshall and his successors in interest. As soon as patent was issued a resulting trust arose in their favor. Newkirk v. Marshall, 10 P. 571; Stoddard v. Chambers, 2 How. (U.S.) 318; Stephenson v. Smith, 7 Mo. 618; Hunsucker v. Clark, 12 Mo. 334; Groves' Heirs v. Fulsome, 16 Mo. 543; Davis v. Filer, 40 Mich. 310; Sensenderfer v. Kemp, 83 Mo. 581; Widdicombe v. Childers, 84 Mo. 382; Johnson v. Flutsch, 176 Mo. 452; Hedrick v. Beeler, 110 Mo. 91; James v. Groff, 157 Mo. 421; Damschroeder v. Thias, 51 Mo. 100. (3) The deed from Hill to Leander J. Marshall, although acknowledged before a justice of the peace in Ohio, has been recorded thirty years, and the record was competent evidence of its execution and all it contained. Testimony of Hill is not sufficient to overcome the proof of his deed. Eclivie v. Sheppard, 179 Mo. 382; Secs. 6314 and 6318, R.S. 1909; Secs. 3119 and 3123, R.S. 1899; Brown v. Oldham, 123 Mo. 621; Wells v. Presey, 105 Mo. 165. (4) Limitation did not run until legal title to the southeast quarter of the southeast quarter emanated from the United States. Gibson v. Chouteau, 13 Wall. 92. Even though Hill had taken actual possession of this land (which he did not) at the time of the issuance of the patent to the southeast quarter of the southeast quarter, the Marshalls would not now be barred to maintain an action against him, -- ten years not having elapsed. Mere delay will not prevent recovery in equity. The statute does not begin to run against an action to enforce a resulting trust growing out of an entry of public lands before the patent is issued, and then only when defendant is in possession. Buren v. Buren, 79 Mo. 538. The statute will not run in favor of one in possession of real estate so long as the legal title remains in the United States. Smith v. McCorkle, 105 Mo. 135; Cummings v. Powell, 97 Mo. 524. Even this is true though ejectment might have been maintained, and no ejectment was possible because Hill did not occupy it. Smith v. Madison, 67 Mo. 694; Hammond v. Johnson, 93 Mo. 198; Cooper v. Deal, 114 Mo. 527. (5) To constitute a person a bona-fide purchaser for value without notice, the purchase money must be paid before notice is received. Arnholt v. Hartwig, 73 Mo. 485. This plea is an affirmative allegation in any event and must be affirmatively proved. Young v. Schofield, 132 Mo. 650. The Doe Run Lead Company had an actual and constructive notice and is not a bona-fide purchaser for value without notice. Meyer v. Bloom, 80 Mo. 179; Insurance Co. v. Smith, 117 Mo. 261; Hedrick v. Railroad, 120 Mo. 516; Widdicombe v. Childer, 84 Mo. 382; Gibson v. Lair, 37 Mo. 188.
William Henry White for respondents.
This is an equity cause. In order that appellants may have appellees' title as prayed, it is necessary, in effect, that there be a specific performance of the supposed agreement between Hill and Leander J. Marshall made in 1874 -- thirty-nine years before the petition was filed -- then that the deed of that ancient date be reformed as well as the one to Mrs. Marshall one year later and also the patent. It is also necessary, in effect, to cancel the Doe Run Lead Company's option under which it in good faith took the usual long mining chances and expended more than $ 3000 and found lead, which gives the land its first real value to its owner or to the community. (1) Laches. Petition was demurrable. The facts are shown upon the face of the petition -- that for eight years appellants were apprised of every fact. Burgess v. Railroad, 99 Mo. 496; Moreman v. Talbott, 55 Mo. 392. Even where the delay is not explained satisfactorily, demurrer lies. Bliss v. Pritchard, 67 Mo. 181; McQuiddy v. Ware, 20 Wall. 19; Marsh v. Whitmore, 21 Wall. 184; Badger v. Badger, 2 Wall. 94; Murphy v. De France, 105 Mo. 53; Wendover v. Baker, 121 Mo. 273. Defense is pleaded, specially. Bliss v. Pritchard, 67 Mo. 181. Within statutory period. Note the short periods in the following cases. This is a tract of worthless land suddenly become valuable by Hill's industry and intelligent management and attention and the Doe Run Lead Company's money. The statutory period had more than elapsed and by analogy appellants are barred. Kline v. Vogel, 90 Mo. 239; Burgess v. Railroad, 99 Mo. 496; Banks v. Burnham, 61 Mo. 76; Landrum v. Bank, 63 Mo. 48; Burdett v. May, 100 Mo. 13; Kroenung v. Goehri, 112 Mo. 641; Parker v. Vanhoozer, 142 Mo. 621; Patterson v. Hewitt, 195 U.S. 309; Hatcher v. Hatcher, 139 Mo. 626. Repudiation. Prompt action is required after notice of repudiation. Four years is too long -- even two years. Appellants had the best of all notice on July 21, 1896, of Hill's claim to this very land and of all the grounds of his claim. Their petition was filed more than ten years later, on December 11, 1906. Banks v. Burnham, 61 Mo. 76; Patterson v. Hewitt, 195 U.S. 309. Increased value. The land was worthless when entered in 1874. It had only a speculative value until lead was discovered under the option from Hill after the second decree. Appellants contributed nothing, not even taxes; defendants everything and took chances which gave it its real value to the public and the defendants. Moreman v. Talbott, 55 Mo. 392; Pomeroy v. Fullerton, 131 Mo. 581; 16 Cyc. 161, note 6; Ib. 162, note 7; Hatcher v. Hatcher, 139 Mo. 626. Two years' delay was held fatal in one case. Reel v. Ewing, 71 Mo. 17. Thirty-two years' delay. The petition was filed December 11, 1906. The first deed sought to be reformed is dated in 1874 -- thirty-two years before; the second in 1875 -- thirty-one years before. No case can be found in the books where such delay has been excused. Fifteen years' delay unexplained is fatal, even in case of fraud and where the deed was procured from one insane. Norris v. Haggin, 136 U.S. 386. As between trustee and cestui que trust, twenty years is too long. Hammond v. Hopkins, 143 U.S. 224. (2) Specific Performance. Based, as the petition is, upon Hill's alleged thirty-two year old contract with Leander J. Marshall to convey the whole interest in this land to him which it is now sought to specifically enforce, the following elementary principles are called to the attention of the court: In discretion of court. 4 Pattison's Digest, p. 3303. Never granted where inequitable. 4 Pattison's Digest, p. 3303, No. 12; McElroy v. Maxwell, 101 Mo. 294; 16 Cyc. 162, note 7. Estoppel, permitting another to improve. Allen v. Mansfield, 108 Mo. 343. Character of proof, see "Mistake." (3) Mistake. Proof. The proof must be clear and convincing; mere preponderance of evidence is not sufficient; it must be free from reasonable doubt; a mistake on both sides and sufficient to establish a trust. 3 Pattison's Digest, p. 2388, No. 133; Same, Vol. 4, p. 3313, No. 191; Maddrell v. Riddle, 8 Mo. 31; Allen v. Carter, 8 Mo.App. 585; Tesson v. Insurance Co., 40 Mo. 33; Dickson v. Railroad, 168 Mo. 90; Clark v. Railroad, 127 Mo. 255. Correction. The correction must make the instrument over to conform to the real contract. The court cannot make a contract for the parties. Downing v. McHugh, 3 Mo.App. 594; Sweet v. Owens, 109 Mo. 1; Parker v. Vanhoozer, 142 Mo. 352; Shrayer v. Nickell, 55 Mo. 264; Miller v. Railroad, 162 Mo. 424. Mistake on one side is ground for rescission, not for reformation. 24 Am. & Eng. Ency. Law (2 Ed.), p. 618, note b. Correcting description. This is under same rule as further assurance. Hausmann v. Adams, 65 Mo.App. 273. (4) Limitations. Thirty-year statute. Equitable title passed from United States, May 6, 1872, more than ten years. Hill was in possession cutting wood from June 1, 1895, to March 12, 1896; he made a survey in the spring of 1903 and the corner stones are still standing; he recorded the subdivision, 1903; the assessment for taxes was as "Rose Hill" and by lots and blocks to date, more than one year before suit was filed in 1906. He has paid all taxes assessed since entry in 1872. The Marshalls have never been in possession and have not paid taxes for thirty years; have never paid any. Collins v. Pease, 146 Mo. 135; Shumate v. Snyder, 140 Mo. 84; Pharis v. Bayless, 122 Mo. 116; Fairbanks v. Long, 91 Mo. 628; Rollins v. McIntire, 87 Mo. 496; Mansfield v. Pollock, 74 Mo. 185; DeHatre v. Edmonds, 200 Mo. 275.
OPINION
In Banc.
-- In February, 1905, the defendant Norman N. Hill filed his petition in the St. Francois Circuit Court returnable at the next May term thereof, in words and figures as follows:
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