Oldaker v. Spiking

• Decision Date: 30 December 1918
• Docket Number: No. 19039.,19039.
• Citation: 210 S.W. 59
• Parties: OLDAKER v. SPIKING et al.
• Court: Missouri Supreme Court

210 S.W. 59

OLDAKER v. SPIKING et al.

No. 19039.

Supreme Court of Missouri, Division No. 1.

December 30, 1918.

Rehearing Denied March 1, 1919.

Appeal from Circuit Court, De Kalb County; Alonzo D. Burnes, Judge.

Action by John D. Oldaker against John H. Spiking. Judgment for defendant, and plaintiff appealed. Defendant having died, the action was revived in the names of the defendants Sarah A. Spiking and others. Affirmed.

This action was commenced by plaintiff against John H. Spiking, in the circuit court of De Kalb county, Mo., on April 2, 1914. The first count is ejectment to recover possession of an undivided one-half of the west half of the 103 acres of land in said county, described in petition. The date of ouster is stated as April 15, 1909. The second count seeks to partition the west half of said 103 acres, on the theory that plaintiff and said John H. Spiking were tenants in common as to same.

The suit was originally brought against John H. Spiking, in which he was alleged to be the owner of an undivided half interest in the west half of said 103 acres, as a tenant in common with plaintiff. John H. Spiking died, after the cause was appealed to this court, and the action was revived in the names of the present defendants, as his heirs.

The answer filed by John H. Spiking contains a general denial as to first count, and alleges that he was the owner of the real estate in controversy. It is further averred in said answer that in December, 1866, one Nathaniel Crank was appointed by the probate court of De Kalb county, Mo., guardian and curator of plaintiff's estate in said county, said plaintiff being a minor at the time; that he duly qualified as such guardian and curator; that as such he was legally ordered by said probate court to sell plaintiff's interest in the real estate in controversy; that on or about the 10th day of February, 1868, under and pursuant to said order, the guardian and curator aforesaid sold plaintiff's interest in above land to one David McAllister for $200 in cash, the same being a fair valuation for said interest; that he made a report of said sale, as such guardian and curator, to the probate court aforesaid, on or about the ______ day of February, 1868; that on or about the ______ day of May, 1868, said sale was confirmed and approved by said court; that the latter ordered said guardian and curator to execute and deliver to said purchaser a deed for plaintiff's interest in said land; that said purchaser complied with the terms and conditions of said sale; that defendant, through mesne conveyances from said David McAllister and others, became the owner of the land aforesaid, formerly owned by plaintiff. Defendant alleges that he held the equitable title to all the lands described in first count of petition, and in equity should be decreed the legal owner thereof, etc. Said answer further avers that said McAllister purchased of said Crank, as curator, in 1868, the real estate described in petition, which at that time belonged equally to plaintiff and his brother, James Darby, and paid for said land $200 in cash; that said purchase was made in good faith, and without any knowledge of lack of authority to sell and convey, if any; that plaintiff and his brother became the beneficiaries of said sale; that said purchase money was received and used for their benefit; that defendant by mesne conveyances from said McAllister and others became the owner of said land; that in equity and good conscience plaintiff should not be permitted to recover any part of said land described in the first count of petition, until he has repaid the sum of $100, with 6 per cent, interest from the date of payment of the purchase price by said McAllister. Said answer, as to second count, denied that plaintiff had any interest in the lands described therein. It alleges that said defendant holds the fee-simple title to said lands and is the owner thereof.

Plaintiff's Evidence.

It is conceded that Sylvester Crank was the common source of title. On September 4, 1866, said Sylvester Crank and wife conveyed the west half of the 103 acres of land in controversy, for the expressed consideration of $600 to "Mary A. McDaniel and to the heirs of her body after her death. * * * To have and to hold the same together with all the rights, immunities, privileges and appurtenances to the same belonging unto the said party of the second part and to the heirs of her body after her death and assign forever."

On April 6, 1868, said Crank and wife again conveyed by warranty deed the land aforesaid, for the expressed consideration aforesaid, to Mary Ann McDaniel, and containing the following recital:

"The above-described land was intended to be conveyed by a previous deed."

The habendum of said last-mentioned deed reads as follows:

"To have and to hold the premises hereby conveyed with all rights, privileges and appurtenances in any wise belonging unto Mary Ann McDaniel, and to the heirs of her body, heirs and assigns forever."

The first deed from Crank and wife, supra, was filed for record October 1, 1866. The second deed, supra, was recorded April 6, 1869.

Plaintiff testified that he was born July 11, 1846; that he was never a resident of De Kalb county, but formerly lived in Gentry county, Mo.; that he never knew of Nathan Crank being his guardian; that he did not know, until a short time before the trial below, that a guardian's deed had been made to the land.

Counsel for plaintiff admitted at the trial that if plaintiff had any interest in the land in controversy, it was a half interest, and that it was sold under the guardian's deed.

Respondents' Evidence.

Mary Ann McDaniel, the life tenant, died in 1909, and left as remainderman her two sons, James Darby and the plaintiff, John D. Oldaker. Her daughter, Florence, married Wm. J. Lingenfelter, but died before her mother, without issue.

The probate court of De Kalb county, Mo., was established in March, 1866, and the records of said court were destroyed by fire in 1878.

Nathaniel Crank, uncle of plaintiff, was appointed by the probate court of De Kalb county guardian and curator of plaintiff and his brother, James Darby, and duly qualified as such. He testified that they were then both minors and lived with their mother, Mary A. McDaniel, in De Kalb county; that the probate court ordered a sale of the land in controversy, as the property of said plaintiff and Darby; that under said order of sale he sold the property in controversy, belonging to plaintiff and Darby, to David McAllister. He testified that plaintiff was about 18 and Darby between 12 and 14 years of age, when he was appointed their guardian and curator; that Meredith Marshall, Lewis Folkener, and Geo. R. Marshall, mentioned as appraisers in the guardian and curator's deed, were not related to plaintiff or Darby, nor were they interested in said real estate; that plaintiff and Darby were equal owners of said real estate; that he made a final settlement with the probate court of De Kalb county, Mo., as guardian and curator of plaintiff and Darby; that said settlement was approved, and he was discharged as such guardian and curator; that according to the best impression of witness, plaintiff got the benefit of the money coming to him, although it was paid under the direction of the probate court to his mother, for the support and maintenance of plaintiff; that John Stevens was the probate judge who ordered the sale of the land aforesaid. On cross-examination he testified that in his opinion the $200 for which the land sold was paid to plaintiff's mother under the order of the court, and that it went in the direction of supporting plaintiff and Darby.

Over the objection of plaintiff, the guardian's deed heretofore mentioned was read in evidence by defendant. It is dated July 9, 1877. It recites on its face that the probate court aforesaid ordered said guardian and curator to sell said land as the property of plaintiff and Darby. It recites that such sale was made February 10, 1868, to David McAllister, for $200 cash, said property having been appraised at $250; that the guardian and curator at the February term, 1868, made return of his proceedings in respect to said sale; that said report was at the same term confirmed, and the sale made valid, as shown by the record. It recites the payment of the $200 in accordance with the terms of said sale by McAllister. It conveyed to the latter the land, in controversy. It was acknowledged before J. S. Stephens, judge of probate. It was filed for record July 9, 1877.

Defendant offered in evidence a warranty deed from David McAllister to Thos. D. Spiking, conveying the land in controversy, with the expressed consideration of $500. Said deed was dated October 18, 1869. Also a warranty deed from Thos. D. Spiking and wife to John H. Spiking for same land, dated December 25, 1869, for the expressed, consideration of $600, recorded December 29, 1869. He also offered in evidence a quitclaim deed from James A. Darby, single, to John H. Spiking, conveying same lands, dated December 9, 1878, for the expressed consideration of $10.

John H. Spiking testified that in 1875, he examined the records of the probate court of De Kalb county, Mo., in regard to this land, to ascertain why the guardian and curator's deed had not been made and put on the land records. He said the record showed Nathan Crank was appointed guardian in December, 1866, for John D. Oldaker and James Darby, minor heirs of Mary Ann McDaniel; that it gave the age of Oldaker at 15 and Darby as 9 years; that he saw the report of sale made by the guardian, which stated that the sale was made February 10, 1868. He said the record showed the land had been sold and appraised, and by whom; that the sale was received and report approved. He said the minor's interests sold for $200; that he saw the report of the appraisers.

It appears from the record that Mary Ann McDaniel and husband and Florence...