McCune v. Goodwillie

• Decision Date: 29 May 1907
• Citation: 204 Mo. 306,102 S.W. 997
• Parties: McCUNE et al. v. GOODWILLIE et al.
• Court: Missouri Supreme Court

102 S.W. 997

204 Mo. 306

McCUNE et al. v. GOODWILLIE et al.

Supreme Court of Missouri. Division No. 1.

May 29, 1907.

1. WITNESSES—INCOMPETENCY—WAIVER.

Where a witness is incompetent, and the party insisting on his incompetency examines him, on cross-examination, on new matter not brought out in chief, his incompetency as to such new matter is waived.

2. APPEAL — OBJECTIONS TO EVIDENCE — REVIEW.

Under Rev. St. 1899, § 864 [Ann. St. 1906, p. 808], providing that no exceptions shall be taken in an appeal, except such as shall have been decided by the trial court, where the only objection to the admission in evidence of the exemplification of the record of a court of a sister state was that the court had no jurisdiction to enter a decree affecting real estate in Missouri, the appellate court cannot review an assignment that the decree of the court of the sister state was not final, but interlocutory.

3. ESTOPPEL—ASSENT TO JUDICIAL PROCEEDINGS—EFFECT.

Persons accepting the decree of a court of a sister state as final, and enjoying benefits under it by making a distribution of property in accordance therewith, are estopped from asserting that the decree was interlocutory.

4. APPEAL—OBJECTIONS NOT MADE BELOW—REVIEW.

Where the trial court admitted in evidence the exemplification of the record of a court of a sister state over the objection that the court had no jurisdiction to enter a decree affecting real estate in Missouri, the court on appeal would not consider the assignment that the record showed that the decree was appealed from.

5. TRIAL—EVIDENCE—OBJECTIONS—EFFECT.

An objection to the admission in evidence of the exemplification of the record of a court of a sister state, in a suit to set aside a conveyance on the ground that the court did not have jurisdiction to enter a decree affecting real estate in Missouri, does not challenge the jurisdiction of the court, except so far as it attempted to enter a decree affecting Missouri real estate.

6. ESTOPPEL—ASSENT TO JUDICIAL PROCEEDINGS.

In a suit in a court in a sister state to set aside a conveyance of real estate, a decree setting aside the conveyance was rendered. The court had jurisdiction of the persons of the parties. Part of the land affected was in Missouri. Subsequently the parties to the suit made a distribution among themselves based on the decree. Held, that they were estopped from asserting that the court was without jurisdiction to render the decree.

7. INFANTS—CONVEYANCES—RATIFICATION.

An infant, who, on attaining his majority, adopts and ratifies partition deeds made in accordance with a decree of a court of a sister state, is bound by the conveyances.

8. WILLS—CONSTRUCTION—ESTATES DEVISED.

A testator gave, "subject to the limitations * * * hereinafter expressed," his residuary estate to his four children equally, and provided that, in case any of the children should die leaving no child surviving, the share, instead of being held by the wife or husband of the deceased child, should pass to testator's grandchildren that might then be living in equal proportions, and provided for a sale of the real estate by his executrix and a distribution of the proceeds among the devisees "subject * * * to * * * limitations * * * in the foregoing" provision. Held, that the estate of any child dying leaving no child passed to testator's then living grandchildren.

9. DEEDS—DELIVERY—ACCEPTANCE.

To constitute a good delivery, a deed must not only pass from the actual and constructive control of the grantor, but the grantee must accept it.

10. SAME—PRESUMPTIONS.

The recording of a deed is presumptive evidence of its delivery, and, being for the grantee's benefit, is presumptive evidence of acceptance thereof, which presumptions are rebuttable.

11. SAME—DELIVERY—EVIDENCE.

Evidence examined, and held to support a finding that a deed was not delivered by the grantor to the grantee, though it was recorded.

12. ADVERSE POSSESSION—ELEMENTS.

A possession commencing in subordination to the true title of another does not change into a hostile one, unless the occupant brings notice home to the holder of the title by open acts unequivocal in character that he holds against all claimants.

13. TAXATION—TAX SALES—TITLE ACQUIRED BY PURCHASER.

A purchase at a tax sale, by one on whom the duty of paying the taxes rests, operates as a payment of the taxes, and leaves the title as if payment had been made before sale.

14. SAME.

Where persons entitled to real estate as remaindermen were not made parties to a tax proceeding resulting in a judgment for the sale of the premises for delinquent taxes, the tax deed did not affect them.

Appeal from Circuit Court, Henry County; W. W. Graves. Judge.

Action by Nellie B. McCune against Ora M. Goodwillie and another, in which defendant George W. Brown asked for affirmative relief against his codefendant. From a decree for plaintiffs and for defendant George W. Brown, defendant Ora M. Goodwillie appeals. Affirmed.

Mark C. Campbell, for appellant. C. C. Dickinson and John Ferguson, for respondent Brown. Parks & Son and Flory & Flory, for respondent McCune.

LAMM, J.

Plaintiffs sue under Rev. St. 1899, § 650 [Ann. St. 1906, p. 667], to determine and establish the estate, title, and interest of plaintiffs and defendants, respectively, in certain real estate in Henry county, to wit, the N. ½ of the S. W. ¼ of section 24 (hereinafter called tract A) and the S. W. ¼ of the N. E. ¼ and the S. ½ of the N. W. ¼ of the N. E. ¼ of section 27 (said parcels being hereinafter called tract B), all in township 42, range 27; and the S. ½ of the N. W. ¼ of said section 24 (hereinafter called tract C). The defendant Brown (hereinafter called George Brown) answered, alleging facts entitling him to affirmative equitable relief against his codefendant, Goodwillie, if true, thereby changing the case into one strictly in equity. From a decree in favor of plaintiffs and defendant George Brown, the defendant Ora M. Goodwillie appeals.

The paper case is this: Plaintiffs say they own in fee simple tracts A and B, and as remaindermen own tract C, subject to the life estate of defendant Brown in C. The petition avers that Ora M. Goodwillie claims to own said real estate; that the defendant George Brown claims to own a life estate in tract C. At the institution of the suit, Ella P. McCune, the mother of plaintiffs Nellie B., Alice L., and Julia H. McCune, was a defendant; but, she dying pending suit, her interest, if any, descended to her said children. It was averred that not only does defendant George Brown claim to own a life estate in tract C, but that he and Ella P. McCune claim some interest in the other land by virtue of the will of one J. Murray Brown (hereinafter called Murray Brown), their brother now deceased.

The allegations of the separate answer of George Brown may be summarized thus: That Dixon Brown died seised of a large tract of land in Henry county, Mo., of which the land described in the petition was a part; that he died testate, and his will was established and admitted to probate; that George Brown, Murray Brown, Ella P. McCune, and Catherine Brown were brothers and sisters and the children of Dixon Brown; that Catherine died in 1880, leaving a son, Frank B. Stafford (coplaintiff with the McCune heirs); that Murray Brown died in 1893, leaving the defendant Ora M. (since intermarried with Thomas B. Goodwillie), his widow; that, in accordance with the provisions of Dixon Brown's will, said George Brown, Ella P. McCune, Frank B. Stafford, and Murray Brown, in the year 1886, divided the real estate described in the petition between them; that in pursuance of that division one Barr, as executor of Dixon Brown's will, was required by them to execute and deliver a deed to each for his or her respective share; that such deeds were executed, and thereby defendant Brown obtained tract C; that he and his wife, Emma, being childless, he, under the notion that his wife could hold the share allotted and conveyed to him for her natural life if he conveyed it to her through a conduit, made a conveyance of tract C. to his brother Murray in September, 1892; that George and Murray Brown had talked over this plan prior to the execution of the deed. It may as well be said here, in explanation, that it is affirmed on one side, and seemingly denied on the other, that the will of Dixon Brown devised to George only a life estate. The answer proceeds with the averment that George Brown never delivered this deed, but placed it on record in Henry county in January, 1893, and recovered possession of it from the recorder; that Murray Brown was sick, and was never able to execute a deed to Emma, he dying in the summer of 1893; that there was no consideration for the deed from George to Murray, and George Brown has been in the full and undisputed possession of tract C from the date of said division deed; that Murray Brown owned an adjoining 80 acres (tract A), and, there being an agreement to that effect between Murray and George, the said Murray rented the two tracts together until the time of his death, paying the taxes out of the rents, and paying one-half of the remaining rents to George; that, after the death of Murray, George had the same running arrangement with his codefendant, Ora M., and they rented the land together through one Crissman; that Ora M. paid him one-half the rents up to the year 1901, and, until within the last six months, recognized his possession and ownership of tract C and part of tract B, and disclaimed all title and right thereto. The answer then avers that George Brown is the owner of the above real estate; that Ora M. Goodwillie has no interest, right, or title to the same, or right to possession thereof, and has never had possession thereof, and a decree is prayed adjudging that she have no right, title, or interest in said real estate, and for general relief. The separate amended answer of Ora M. Goodwillie admits s...