Olden v. Hendrick
| Decision Date | 02 June 1890 |
| Citation | 13 S.W. 821,100 Mo. 533 |
| Parties | Olden et al., Appellants, v. Hendrick et al |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. W. D. Hubbard, Judge.
Affirmed.
Boyd & Delaney for appellants.
(1) The evidence of Price tending to show that L. Hendrick furnished the purchase money is all hearsay and should have been excluded. (2) To create a resulting trust in any case the evidence of payment of the purchase money by the person seeking to declare the trust must be so clear and full as to remove all doubt from the mind of the chancellor. There is no such evidence in this case. Johnson v. Quarles, 46 Mo. 423; Ringo v. Richardson, 53 Mo. 385; Kennedy v. Kennedy, 57 Mo. 73; Berry v Hartzell, 91 Mo. 132; Philpot v. Penn, 91 Mo 38; Jackson v. Wood, 88 Mo. 76; Rogers v Rogers, 87 Mo. 257. (3) Even if the proof is conclusive that L. Hendrick advanced the purchase money, no trust arises. The money was advanced by the father and the title taken in the name of the son. The presumption of law, therefore, is that it was an advancement to the son. McKinney v. Hensley, 74 Mo. 326; State ex rel. v. True, 20 Mo.App. 176; Darrier v. Darrier, 58 Mo. 222. Or, if L. Hendrick placed the title in the name of the son to defeat the claims of others, as between father and son, no trust arises. Higgins v. Higgins, 55 Mo. 346. So, as between L. Hendrick and his son, Wm. R. Hendrick, the legal and equitable title vested in the latter. Therefore, refused instruction number 2 should have been given. (4) The title of Wm. R. Hendrick appearing thus of record, it could only be divested by estoppel, or by operation of the statute of limitations. (5) Estoppel is not well pleaded. The acts upon which the estoppel is based are not pleaded. Miller v. Anderson, 19 Mo.App. 71. Besides the facts if well pleaded do not constitute an estoppel. There was no possession taken of the land by Norris and no improvements made thereon. 3 Wash. Real Prop., pp. 460, 461; Fletcher v. Holmes, 25 Ind. 469; Wood v. Griffin, 46 N.H. 237; Gove v. White, 20 Wis. 430. These cases and the principles therein declared were approved in Bales v. Perry, 51 Mo. 449; Burke v. Adams, 80 Mo. 504; Mayo v. Cartwright, 30 Ark. 407; Neal v. Gregory, 19 Fla. 356; Mason v. Philbrook, 70 Me. 57; Sulphine v. Dunbar, 55 Miss. 232; Rice v. Dewey, 54 Barb. 455; Knouffman v. Thompson, 16 Pa. St. 357; Kingman v. Graham, 51 Wis. 232, which declare "that where the party's rights in property sufficiently appear of record mere silence upon his part is no violation of duty, and he is not estopped to assert his rights against others dealing with the property as another's.
F. S. Heffernan for respondents.
(1) Where a man who has a title to lands and knows it stands by, and does not forbid the purchase, he and all claiming under him shall be bound by such purchase. Bigelow on Estoppel, 501; Fayville v. Roberts, 50 N.Y. 222; Demyer v. Souzer, 6 Wend. 436; Niven v. Belknap, 2 Johns. 573; 6 Wait's A. & D. 682, 705; Landrum v. Bank, 63 Mo. 48; Collins v. Rogers, 63 Mo. 515; Evans v. Snyder, 64 Mo. 516; Kelley v. Hurt, 74 Mo. 561-3; Morgan v. Railroad, 96 U.S. 743; Dickerson v. Colgrove, 100 U.S. 618; Kirk v. Hamilton, 102 U.S. 68; Day v. Caton, 119 Mass. 513; 20 Am. Rep. 347. (2) The service is not sufficient. Hewill v. Weatherby, 57 Mo. 276; Smith v. Rollins, 25 Mo. 410. By the conduct of Wm. R. Hendrick in his lifetime, he would have been estopped by his conduct from claiming any interest, consequently his widow and his children are. Bigelow on Estop. (1872), page 480. Deed, not acknowledged in open court, cannot be read in evidence to show title, but only to show color of title, and limitation need not be pleaded. Campbell v. Gas Co., 84 Mo. 354.
-- The plaintiff, Eliza C. Olden, is the widow of William R. Hendrick, and she and her present husband brought this suit against her children by her former marriage for the partition of lots 29 and 30 in Hendrick and Jones' addition to the city of Springfield. Fannie E. Holland and her husband George Holland were made defendants on their own motion. The controversy is between Holland and wife on the one hand and the other parties to the suit on the other.
The two lots are a part of eighty acres of land formerly owned by L. Hendrick who was the father of William R. Hendrick, the former husband of the plaintiff Eliza. The eighty-acre tract was sold under a judgment in favor of Greene county against L. Hendrick and others, and William R. Hendrick became the purchaser and received a sheriff's deed dated in December, 1850; this is the title of the widow and heirs of William R. Hendrick. In 1859, L. Hendrick, William R. Hendrick and N. T. Jones joined in making and filing a plat of Hendrick and Jones' addition, and the lots in question are a part of the property covered by the plat. In November of the same year, 1859, L. Hendrick by warranty deed and for a full consideration conveyed four lots to John Norris; and thereafter and in the same year Norris conveyed two of the lots to the defendant Fannie E. Holland; she and her husband claim under this title.
On the face of the deeds the title, it will be seen, is in the widow and heirs of William R. Hendrick. The controlling question in the case arises over the equitable estoppel set up in the answer of Holland and wife. The evidence on this branch of the case is, in substance, this: The sheriff's deed to William was executed and recorded in 1850, and the consideration therein recited is three hundred and forty-five dollars. L. Hendrick, father of William and the judgment debtor, was financially embarrassed; but he borrowed three hundred and forty-five dollars and with the money bought in the land, taking the deed in the name of his son William. On this point some hearsay evidence was admitted, but excluding all such evidence it is still clear that the money was borrowed by L. Hendrick and by him used in paying for the property so purchased at the sheriff's sale.
The plaintiff being called as a witness by the defendants, Holland and wife, testified that she married William in 1864 and lived with him until his death in 1879. She says:
A son of L. Hendrick, and a brother of William, says he knew of the sheriff's sale; that he is satisfied his father bought in the land, taking a deed in the name of William; that William was an invalid, living with the father and had no property, except a horse; that the land was sold at sheriff's sale because of trouble which his father had with the Miller heirs; that the sale of the lots to Norris was talked over in the family; that he believes William knew of the sale to Norris, as he was always at home, but he cannot be positive; that his father built upon and enclosed part of the eighty acres after the sheriff's sale, and the family lived on the place; that witness, his father and Norris went over the ground to look at the lots, but he cannot say whether William was along or not; that his father attended to the sale of lots and no one else claimed them; and that William joined in some of the deeds made to purchasers. William administered upon his father's estate in 1863, and in his inventory he included the notes given by Norris for the lots and also all of the unsold lots as the property of his father.
The chief objection to the application of any principle of estoppel is, that the sheriff's deed to William was made matter of record in 1850, so that the public records disclosed his title, and hence he was not bound to take any active measures to prevent persons from purchasing from his father. Mere standing by in silence will not bar one from asserting a title to land which has been spread upon...
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