McGuire v. Nugent

• Decision Date: 23 February 1891
• Citation: 15 S.W. 551,103 Mo. 161
• Parties: McGuire, Administrator, v. Nugent et al., Appellants
• Court: Missouri Supreme Court

15 S.W. 551

103 Mo. 161

McGuire, Administrator, v. Nugent et al., Appellants

Supreme Court of Missouri, First Division

February 23, 1891

Appeal from Buchanan Circuit Court. -- Hon. O. M. Spencer, Judge.

Affirmed.

Woodson & Woodson and B. R. Vineyard for appellants.

(1) When a wife dies without any children or their descendants father, mother, brother, sister or their descendants, her surviving husband becomes her sole heir. R. S. 1889, sec 4465; R. S. 1879, sec. 2161; G. S. 1865, p. 518, sec. 1. (2) The will of John K. Cunningham, the father of Nugent's wife, constituted Mrs. Martin, the plaintiff, a trustee for the testator's daughter, Mrs. Nugent, and named her as her guardian. Mrs. Martin testified that she took charge of the lot sued for "under the will," and "held that property under that will all the time." Being in possession as a trustee under an express and continuing trust, she could not claim adversely or assert title by limitation. Goodwin v. Goodwin, 69 Mo. 617; 2 Perry on Trusts, sec. 863, and authorities there cited. Besides counsel for plaintiff admitted in open court at the trial that the title to the lot was as charged in the answer, and that Mrs. Nugent owned the fee thereof at the date of her death. (3) The application by a trustee of the whole income of the trust property to his own use, for a period of years long beyond the time prescribed by statute for acquiring title by adverse possession, will not constitute such a disavowal of the trust relation as will start the statute of limitation to running. Goodwin v. Goodwin, 69 Mo 617. (4) The defendant Nugent had made his deed for the lot in controversy to his codefendant, Coulter. The petition charges this fact. By making Nugent a defendant, when he had no interest whatever in the lot, the plaintiff could not recover on the answer of defendant Nugent; and the court erred in permitting plaintiff to introduce evidence, as against Coulter, the real defendant, in support of Nugent's answer, and in refusing to strike out said answer, which had been filed just before the case was called for trial. A plaintiff is confined in his right of recovery to the cause of action set out in his petition. Perry v. Barrett, 18 Mo. 140; Ensworth v. Barton, 60 Mo. 511; Eyerman v. Cem. Ass'n, 61 Mo. 489; Clements v. Yates, 69 Mo. 623. (5) This case, in the court below, was tried on the theory that defendant Coulter by some deception had procured a conveyance of the lot in controversy from the defendant Nugent. There was no charge of fraud or deception in plaintiff's petition, and in the absence of such charge the plaintiff had no right to introduce evidence in support thereof. No relief can be awarded on the ground of fraud or deceit, "unless it is made a distinct allegation in the bill, so that it may be put in issue by the pleadings." Hart v. Railroad, 65 Mo. 510; Bliss on Code Pleadings, sec. 211; James v. McKernan, 6 Johns. 543; Patton v. Taylor, 7 How. 159.

J. P. Grubb and Ryan & Macdonald for respondent.

As between Peter Nugent and respondent, the trust having been terminated by the death of the cestui que trust, no fiduciary relations existed, and respondent was not prohibited by any principle of law or equity in setting up an adverse claim of title to the property against plaintiff. 2 Perry on Trusts [3 Ed.] sec. 920, p. 574; Roberts v. Mosely, 51 Mo. 282. The answer of defendant Nugent, and all of the evidence offered, shows conclusively that respondent claimed to own the property absolutely in her own right, and that she made this adverse claim from the date of the death of Mrs. Nugent continuously. (2) The answer of defendant Nugent, in so far as it admits the adverse holding of respondent, is responsive to the allegations of the bill, and is, therefore, relevant and material as evidence in the cause. 6 Am. and Eng. Encyc. of Law, p. 800, title, "Equity Pleadings," and cases cited in note 3. And it is further competent as an admission of defendant Nugent for the purpose of showing the character of his claim to the property, and of explaining how he came to execute the quitclaim deed which creates the cloud on respondent's title, and the intention with which it was executed. Thomas v. Wheeler, 47 Mo. 363; Wilson v. Albert, 89 Mo. 545. (3) The deed from defendant Nugent to defendant Coulter vested in the latter, so far as the face of the record is concerned, a valid and legal title to the property in controversy; and there being no defect apparent on the face of the proceedings in defendant Coulter's title, the deed constitutes such a cloud upon respondent's title as equity will always lend its aid to remove. 2 Am. and Eng. Encyc. of Law, p. 303, par. 6, and cases cited under note 1; Clark v. Ins. Co., 52 Mo. 272; Bank v. Evans, 51 Mo. 335; Harrington v. Utterback, 57 Mo. 519; s. c., 54 Mo. 577; Mason v. Black, 87 Mo. 329; Holthaus v. Zimmer, 10 Mo.App. 592. And one claiming title by limitation may maintain a bill in equity to remove the record title. 2 Am. and Eng. Encyc. of Law, p. 307, title, "Bill to Remove Clouds," par. 9; Marston v. Rowe, 39 Ala. 722; Arrington v. Liscomb, 34 Cal. 365; Moody v. Holcomb, 26 Texas, 714. And, unless there has been a statutory abolition of the equitable remedy to remove a cloud, equity has jurisdiction even though there be also a legal remedy. 2 Am. and Eng. Encyc. of Law, p. 308, par. 15; Harrington v. Utterback, 57 Mo. 519.

OPINION

Sherwood, P. J.

This proceeding to remove a cloud from the title to land was instituted April 14, 1887, by Margaret Martin, since deceased, and by consent her administrator's name substituted for hers. The defendants are Peter Nugent and Herbert B. Coulter.

The petition, omitting the formal parts, is the following:

"Plaintiff for her cause of action states that she is the owner in fee and in the possession of the following real estate, situate in Buchanan county, state of Missouri, to-wit: Lot 10 in block 36, original town of the city of St. Joseph, Missouri; and that plaintiff has had the uninterrupted possession of said real estate for the last twenty years, next before the filing of this petition, and that during all said time she had collected the rents from the same and paid the taxes on the same, and has had open, notorious and adverse possession of said premises for the said time of twenty years, claiming all of said time to have the title and absolute ownership in said property. Plaintiff further states that the defendant, Nugent, on and before the seventeenth day of March, 1887, claimed title and ownership in said property as legal heir of his deceased wife, Nugent, who, prior to the title acquired by this plaintiff, had the fee-simple title of said property, and the said defendant Nugent did, on the seventeenth day of March, 1887, execute and deliver a deed of quitclaim to the defendant Coulter, by which he conveyed to said Coulter all his interest in said real estate aforesaid, and the said defendant Coulter did, on the eighteenth day of March aforesaid, have said deed recorded in the land records of Buchanan county, book 133, page 505, and that said deed of quitclaim is a cloud on the title of plaintiff's property, injuring and preventing the sale of the same.

"Wherefore plaintiff asks that the court may, by its decree, cancel said quitclaim deed executed as aforesaid to the said defendant Coulter, by its proper decree to declare and vest the title of said property in plaintiff, and for all other decrees and relief that plaintiff may be entitled to under the pleadings and evidence."

The separate answer of Coulter admits the purchase of the property of Peter Nugent, as charged in the petition, stating that Nugent inherited the property from his wife, Mary Nugent, then deceased.

The source from which the title was derived is then set forth, showing that, in 1851, Cunningham and wife conveyed the property to Dinan as trustee for Mary Cunningham, their daughter; the trustee to convey the premises to whomsoever Cunningham and his wife should direct. In 1855, his wife having died, Cunningham, by his will, appointed his sister, Margaret Martin, the guardian of his daughter Mary, and devised the property in question, as well as other property to his said sister, the concluding words of the will, which was duly probated, being as follows: "To have and to hold the same with all the appurtenances thereunto belonging, unto her, the said Margaret Martin, and her administrators, assigns and other legal representatives, for the sole use and benefit of my said child, Mary Cunningham, and it is furthermore my wish and will that, after she, the said Margaret Martin, has been properly and duly recognized and qualified as guardian of my said child, Mary, before and by the respective authorities, she, the said Margaret Martin, may forthwith at her option, dispose of all my said property or any part, as she may think fit and proper for the benefit of my said child, either by sale, lease, mortgage, deed of trust or otherwise, having all confidence in my said sister, Margaret, that any measures she will take will only be to the best of my said child. All the said property, thus remaining under the control, management and supervision of my said sister, until my said child should become of age, and from that day to be and become vested in my said child in fee simple; that is to say, whatever may be left after the expenses and outlays for the education and bringing up of my said child. To have and to hold the same unto her, said Mary Cunningham, her heirs and assigns forever."

The answer further states that Mary Cunningham was two years of age at the time the deed to Dinan was made; that afterwards she married Peter Nugent, codefendant, and about six years before suit, died intestate, seized of...