Morris v. Parry

• Decision Date: 27 February 1905
• Citation: 85 S.W. 620,110 Mo.App. 675
• Parties: JOSEPH MORRIS, Respondent, v. NANCY C. PARRY, Appellant
• Court: Kansas Court of Appeals

85 S.W. 620

110 Mo.App. 675

JOSEPH MORRIS, Respondent, v. NANCY C. PARRY, Appellant

Court of Appeals of Missouri, Kansas City

February 27, 1905

Appeal from Barton Circuit Court.--Hon. R. J. Tucker, Special Judge.

REVERSED.

Judgment reversed and petition dismissed.

Wright Bros. & Blair and Ragsdale Bros. for appellant.

(1) This suit is not brought under sections 4525, 4542, Revised Statutes 1899. (2) There is nothing in the case justifying the conclusion that this proceeding is designed to meet the requirements of sections 4565, 4571, Revised Statutes 1899. (3) This is not a bill to perpetuate testimony. 1 Greenleaf on Ev., sec. 325; 3 Greenleaf on Ev., sec. 325; 16 Ency. of Plead. and Prac., 353-359; 2 Story's Eq. Jur., secs 1505-1508; 1 Chitty, Gen'l Prac. (2 Am. Ed.), sec. 733; Adams, Eq. (7 Am. Ed.), sec. 23; 2 Burrill's Law Dict.; 1 Bouvier's Law Dict.; 1 Pomeroy's Eq., secs. 82, 211 212, 215; Bispham's Eq. (3 Ed.), sec. 573. (4) This cannot be regarded as a proceeding de bene esse. 2 Story's Eq. Jur., secs. 1513-1516; Adams' Eq., sec 24; 1 Pomeroy's Eq., secs. 25, 215; Bispham's Eq. (3 Ed.), secs. 35, 567. (5) Equity has no jurisdiction where there is an adequate remedy at law. Cable v. Ins. Co., 191 U.S. 288, 24 S.Ct. 74. (6) Courts of equity will not entertain a bill whose sole purpose is to secure a decree that a court of law in a pending case shall rule a certain way on a mere question of the admissibility of evidence.

Thurman, Wray & Timmonds for respondent.

(1) The fact that no precedent can be found for granting relief, under circumstances similar to the case at bar, is no reason for refusing the relief. Courts of equity were created for the purpose of furnishing a remedy where a right exists, without which there would be a failure of justice. Railroad v. Pennsylvania Co., 19 L. R. A. 395; Joy v. St. Louis, 138 U.S. (33 L. Ed.) 843; Gavin v. Curtin, 171 Ill. 640, 40 L. R. A. 776; Dodge v. Cole, 97 Ill. 338, 37 Am. Rep. 122; Joy v. St. Louis, 138 U.S. (34 L. Ed.) 843; Bispham's Equity (3 Ed.), 53. (2) Equity will devise a remedy to meet each new emergency, and will enforce that remedy if the ends of justice require it. It is for such exigencies that a court of equity exists. Guarantee Co. v. Hambleton, 84 Md. 456, 40 L. R. A. 216. (3) This evidence must be regarded as competent upon the principle of ex necessitate rei. Under the allegations in the bill, it is necessary to prevent claims which are a fraud upon property-owners. Moeckel v. Heim, 134 Mo. 576. (4) Courts of equity were established to furnish remedies in cases wherein the law, on account of its universality, is deficient. 1 Story's Eq. (12 Ed.), sec. 3. (5) One of the ancient jurisdictions of a court of equity was to perpetuate testimony. 2 Story's Eq. Juris., sec. 1513, note 3; Adam's Eq., p. 23, chap. 2; 3 Blackstone, Com., 438. (6) Courts of law have no authority to perpetuate testimony, but courts of equity are constantly exercising such jurisdiction. 2 Story's Eq. Juris., sec. 1514.

OPINION

JOHNSON, J.

This is a suit in equity begun in the circuit court of Barton county. Defendant demurred to the petition on two grounds--no cause of action and lack of jurisdiction over the subject-matter. The demurrer was overruled, whereupon defendant declined to plead further and a decree was entered granting the relief prayed for. The correctness of this action of the court is before us for review on defendant's appeal.

The facts constituting the alleged cause of action are contained in averments copied from the petition as follows:

"That this defendant, on the ninth day of September, 1903, filed her petition in this court, alleging in said petition that she is entitled to a dower interest in ten feet off of the east end of sixty feet off of the south end of lot one, in block twelve of the original town, now city of Lamar Missouri, alleging in her said petition that she is entitled to such dower interest as the widow of Joseph C. Parry, deceased, who was seized of an estate in fee in said real estate during his lifetime. The plaintiff herein, as defendant in the suit, denied the alleged right of the said Nancy C. Parry to dower in said real estate, and said cause of action is now pending in this court for determination. Plaintiff further states that the said Joseph C. Parry, being the owner of the land hereinafter described, on or about the first day of December, 1856, joined by his then wife, Josephine Parry, by good and sufficient warranty deed, conveyed to Barton county, Missouri, as a place for the county seat of said county the southwest quarter of the northwest quarter and the west half of the west half of the southeast quarter of the northwest quarter of section 30, township 32, of range 30, Barton county, Missouri, which first-described land is included in the land last hereinbefore described, and which said deed, so made and executed by said Joseph C. Parry and his then wife, Josephine Parry, was, in due form of law, acknowledged and all dower interest therein released; that said deed, so made, executed and delivered to Barton county, was, on the -- day of , 1856, duly filed for record and recorded in the office of the recorder of deeds within and for Barton county, Missouri, and then became an important link in the record title to the last above-described real estate; that afterwards, to-wit: On the -- day of , 1857, said real estate so conveyed to Barton county for county seat purposes was selected as the permanent county seat of the said county, and the town of Lamar duly laid off on said tract of land into lots . . . and a plat thereof duly made and approved. Plaintiff herein further states that, during and by reason of the late War of the Rebellion, the said deed from the said Joseph C. Parry and his then wife, Josephine Parry, to Barton county, and the record thereof, the plat of the town and the record thereof, together with a great number of records, were completely lost and destroyed at the time the public courthouse, in which said records were kept, was destroyed by fire. Plaintiff avers the fact to be that he holds title to the said real estate described as ten feet off of the east end of sixty feet off of the south end of lot 1, block 12, of the original town, now city, of Lamar, Missouri, by mesne conveyance from Barton county, to whom the said Joseph C. Parry and his then wife, Josephine Parry, made said conveyance as afore-said; that after the execution of said deed by Joseph C. Parry and his then wife, Josephine Parry, the said Josephine Parry departed this life, and the said Joseph C. Parry, on the -- day of , 186--, was married to this defendant, Nancy C. Parry. Plaintiff further states that the loss of said deed, and the record thereof, to Barton county, so made by the said Joseph C. Parry and his then wife, Josephine Parry, became known, and the said Joseph C. Parry, for the purpose of supplying said lost deed, on the -- day of , 18--, made and executed another deed in lieu thereof, but the said Nancy C. Parry refused to join in said last-mentioned deed, and made known the fact that she would claim an interest in the last above-described land if she survived her husband, Joseph C. Parry. And afterwards, on or about the -- day of January, 1894, one R. P. Smith, who at that time owned a part of the said southwest quarter of the northwest quarter and the west half of the west half of the southeast quarter of the northwest quarter of said section 30, township 32, of range 30, Barton county, Missouri, instituted suit against this defendant, Nancy C. Parry, and her husband, Joseph C. Parry, who was then living, for the purpose of establishing and making record of said deed from said Joseph C. Parry and his then wife, Josephine Parry, to said Barton county, and to establish, perpetuate and make a matter of public record such evidence as the plaintiff in that cause, to-wit, R. P. Smith, might produce. Plaintiff further states that the said R. P. Smith. to establish his said cause of action against the said Joseph C. Parry and Nancy C. Parry, and to perpetuate and make a matter of public record testimony establishing the existence of said deed so made by Josephine Parry and Joseph C. Parry, and the real estate so conveyed to Barton county, Missouri, for county-seat purposes, took the deposition of one John H. Winkle, after due notice to said Joseph C. Parry and Nancy C. Parry this defendant, which said deposition, after being taken in due form of law, was filed in said cause of R. P. Smith v. Joseph C. Parry and Nancy C. Parry in the circuit court of Barton county, Missouri, where the same has ever since been preserved among the records of this court, as taken; that, at the time of the taking of said deposition, the said John H. Winkle was over seventy years of age and in a weak and feeble condition; that the said John H. Winkle, in his said deposition so taken, testified to state of facts showing the execution, acknowledgment and delivery of said warranty deed from said Joseph C. Parry and his then wife, Josephine Parry; that since the taking of said deposition, the said John H. Winkle has departed this life, and, owing to the great number of years which have elapsed since the execution of the said deed from said Joseph C. Parry and his then wife, Josephine Parry, and the destruction of the records as aforesaid, it is impossible to establish the facts concerning the execution of said deed by reason of the fact that all persons known to this plaintiff who had personal knowledge of the execution and delivery of said deed, have since departed this life. Plaintiff further states that the said Joseph C. Parry and Nancy C. Parry, well knowing of the existence of such conditions, made a quitclaim deed to the said R. P. Smith in and to...