Moore v. Wingate

• Decision Date: 31 August 1873
• Citation: 53 Mo. 398
• Parties: WILEY MOORE, Respondent, v. WILLIAM J. WINGATE, Appellant.
• Court: Missouri Supreme Court

53 Mo. 398

WILEY MOORE, Respondent,

v.WILLIAM J. WINGATE, Appellant.

Supreme Court of Missouri.

August Term, 1873.

Appeal from Linn Circuit Court.

Mullins & Easley, for Appellant.

I. The fact that the grantor remained in possession after condition broken, is not sufficient. It must be shown that it was done with the intention to claim the forfeiture. (Williard vs. Henry, 2 N. H., 120.)

The authorities which hold that a re-entry is not necessary, or that remaining in possession is presumedly holding for the forfeiture, like 5 Mass., 320, are based upon statutes like G. S. Mass., 1860, Ch. 134, § 3.

II. Respondent has a remedy at law, and equity never lends its aid to enforce a forfeiture. (4 Kent's Com., 130; 2 Sto. Eq. § 1319; Livingston vs. Tompkins, 4 Johns., Ch. 415; Warner vs. Bennett, 31 Conn., 468; Horsburg vs. Baker, 1 Pet., 232.)

G. D. Burgess, for Respondent.

I. Mrs. Grice was not a competent witness. She was a party to the deed from Daniel Grice and wife to the appellant, the instrument upon which this action is based, and Daniel Grice being dead, she was not a competent witness. (W. S., 1372, § 1; Anderson vs. Hance, 49 Mo., 159.)

She is clearly declared to be incompetent by our statute. (W. S., 1373, § 5.)

II. Grice's remaining on the land under the circumstances amounted to an entry. (Lincoln & Kennebeck Bank vs. Drummond, 5 Mass., 321; 1 Bouv. Law Dict., 315; 4 Kent's Com., (11 Ed.) 134, 137, 139; Stuyvesant vs. Mayor of N. Y., 11 Paige, 415; Gray vs. Blanchard, 8 Pick., 283; Hubbard vs. Hubbard, 97 Mass., 192; Andrews vs. Senter, 32 Maine, 394; Hamilton vs. Elliott, 5 S. & R., 375.)

III. And if Grice entered for condition broken during his life-time, his interest in the land was subject to sale by his administrator to pay debts against the same.

VORIES, Judge, delivered the opinion of the court.

On the 13th day of March, 1863, Daniel Grice, an old and infirm man, with his second wife, Sarah Grice, was residing on, and the owner of, a tract of land in Linn County in this State, described as the north-east quarter of the north-east quarter of section 26, township 59 of range 22. On that day said Grice and wife, by deed of that date, conveyed said land to the defendant, who was the son of the said Sarah, and the step-son of the said Daniel. The deed by which the land was conveyed contained this condition: “This conveyance is made for the consideration that the said William J. Wingate maintain his mother, the said Sarah Grice, his step-father, the said Daniel Grice, during their natural lives, also their two small children, John and Daniel, till such time as they may be able to do for themselves. Now, if the said W. J. Wingate shall fail to perform and fulfill the said consideration on his part, the conveyance to be of no effect; but if said Wingate shall fully perform and fulfill the said consideration on his part, then this conveyance to be absolute, and the said party of the second part shall have an absolute title to the above described land, to have and to hold the same with the appurtenances to himself and his heirs and assigns forever.”

Wingate, shortly after the execution of the deed, moved on the land and resided there with Grice and wife for three or four weeks and then abandoned the place, moved out of the neighborhood in a couple of years, and never returned until several years after the death of Grice, alleging that he would not live there with the old people for more than four times the value of the land. Grice and his wife continued in possession of the land until the death of Grice, which took place in about three months after the execution of the deed. Mrs. Grice remained on the land until the year 1868, when she removed to the house of a relative who has taken care of her since.

There is no pretense in the evidence that Wingate ever supported Grice and wife or the children. After the death of Grice, one C. D. Pratt was appointed administrator of his estate, and in the year 1868 procured an order to be made by the Probate Court of Linn County, ordering said administrator to sell said land for the purpose of the payment of the debts against said estate. By virtue of this order the land was sold by the administrator as the property of Grice, deceased, and the plaintiff became the purchaser at said sale, and received the administrator's deed theerfor.

The plaintiff, after his purchase of the land from the administrator, filed his bill setting forth these facts, and charging, that the conditions upon which the deed was made by Grice to defendant had been broken, and that Grice made an entry on said land for the conditions broken, and that the deed thereby became void. The plaintiff therefore prayed, that said deed from Grice to defendant be set aside and held for naught, etc.

The defendant in his answer admits that Grice, on the 13th of March, 1863, was the owner of the land, and that he executed the deed with the conditions stated; admits the death of Grice, and that Pratt was appointed his administrator; but denies that the administrator in pursuance of an order of the Probate Court sold the land to plaintiff as is charged, or that he sold the same in pursuance of any competent authority; denies that he failed to comply with the conditions imposed by the deed, but charges that he at all times complied with the same; denies that Grice at any time entered on said land for the breach of the condition in said deed, or that any entry was ever made by said Grice for condition broken by which said conveyance became void, etc.

A replication was filed, denying the performance by said defendant of the conditions contained in the deed.

At the December Term of the Linn Circuit Court for the year 1869, the cause was tried. The plaintiff offered to read in evidence, a deed from Chester D. Pratt, as administrator of the estate of Daniel Grice, purporting to convey the land in controversy to plaintiff. The defendant objected to the introduction of this deed in evidence, because it appeared by said deed, that the order under which the sale was made, as well as said deed, was void, for the reason that it appeared from the deed, that the administrator made report of said sale to the same term of the court at which the sale was made, and for the reason, that it appears that no notice was given of the sale as required by law, and that the land was sold at a different time from that at which it was advertised to be sold; and for the further reason, that the proceedings in the Probate Court in reference to the sale of the land ought first to be shown before said deed could be read. All of these objections were overruled by the court, and the deed read in evidence; to which defendant excepted.

The plaintiff also offered in evidence the report made by said administrator of the sale of said land to plaintiff referred to in the deed, together with the advertisement and appraisement filed therewith, and the order of said Probate Court confirming said report. To the reading of this report the defendant also objected, for the reasons, that said report could not be offered to cure any defects apparent on the deed, and because the report shows that the lands were never appraised by three appraisers as required by law, while it appeared by the appraisement, that the land was only appraised by two appraisers and the appraisement did not appear to have been sworn to.

These objections being overruled by the court, the defendant again excepted. Several witnesses were then introduced by plaintiff, tending to prove the facts as stated in the first part of the opinion.

The defendant on his part introduced, as a witness in the cause, Sarah Grice, who testified that she was the widow of the said Daniel Grice, deceased. The plaintiff then objected to her being further examined as a witness in the cause, for the reason that she was a party to the contract out of which the action arose, and Daniel Grice, another party to the contract, being dead, it was not competent for her to testify in the cause. This objection was overruled by the court, but the court ruled, that said witness was not competent to testify to anything that passed between her husband and the defendant during her husband's life-time, or to testify about anything her husband may have said. The defendant then offered to prove by said witness, that the defendant left the farm under an arrangement between himself and Daniel Grice, and that said Grice did not remain upon and retain possession of the farm because of a breach of the condition of the deed, and that he never claimed any exclusive title to the land against the defendant after the making of the deed. The court excluded the evidence, and the defendant again excepted.

The defendant offered no other evidence, but asked the court to make several declarations of law, which were refused by the court, and which will not be further noticed, for the reason, that it will not be considered any error in the court to refuse declarations of law in an equitable proceeding by bill in the nature of a bill in chancery.

The court at the close of the evidence found the issues for the plaintiff, and rendered judgment, declaring said deed from Grice to the defendant of no effect and void, and vesting the title to the land in controversy in the plaintiff.

The defendant in due time filed his motions for a new trial and in arrest of judgment, assigning as grounds therefor the opinion of the court excepted to as well as the objection, that the petition did not state facts sufficient to constitute a cause of action. These motions being severally overruled, the defendant again excepted and appealed to this court.

The first question to be considered in this case is, as to the propriety of the action of the court trying the cause in admitting in evidence the deed of the administrator of Grice to plaintiff for the land in controversy.

It is objected to by the defendant, because it appears by the deed that the report of the sale was...