Overton v. Overton

• Decision Date: 11 December 1895
• Citation: 33 S.W. 1
• Parties: OVERTON et al. v. OVERTON et al.
• Court: Missouri Supreme Court

33 S.W. 1

OVERTON et al. v. OVERTON et al.

Supreme Court of Missouri, Division No. 1.

December 11, 1895.

SUPREME COURT — JURISDICTION — PLEADING — ACTION TO SET ASIDE A DEED — PETITION — SUFFICIENCY.

1. An action to set aside a deed of trust to land, on the ground of fraud, involves title to real estate, within the meaning of the constitution, defining the jurisdiction of the supreme court.

2. Though a pleading must be liberally construed (Rev. St. 1889, § 2074), such rule does not dispense with the necessity of stating, directly or inferentially, the facts on which the pleader depends to secure the object of his pleading.

3. In an action to set aside a trust deed of a person, since deceased, on the ground of fraud, where the petition alleges that certain of the plaintiffs are deceased's heirs, and that deceased left a last will, which has been duly probated, but does not give the terms of the will, nor state its effect in respect to its disposition of the land which was the subject-matter of the deed, nor allege that such plaintiffs have any interest in deceased's real estate under the will, it is fatally defective.

Appeal from circuit court, Mercer county; Paris C. Stepp, Judge.

Action by Enoch Overton and others against Randolph Overton and others to set aside a trust deed on the ground of fraud. From a judgment sustaining a demurrer to the petition, plaintiffs appeal. Affirmed.

The petition and demurrer, mentioned in the opinion, are as follows:

Petition: "Enoch Overton, Albert Overton, Isaac Overton, Mary A. Wayman, Stephen Wayman, Susan J. Young, Albert Young, Martha A. Frakes, Marion Frakes, and Joel H. Shelly, Executor of Moses Overton, Deceased, with Will Annexed, Appellants, against Randolph Overton, James Overton, Isaac Curtis, Nancy Curtis, Robert Overton, Charles Overton, and John C. Casteel, Mortgagee, Respondents. Plaintiffs, for their second amended petition, state that, on the 22d day of March, 1891, one Moses Overton, at Mercer county, Missouri, departed this life. That he, in his lifetime, made and published his last will and testament, which said will was duly executed and declared to be by him his last will and testament, and which will was, after his death, duly filed for probate in the office of the probate judge in and for said Mercer county, and was by said probate court duly proved and probated, and declared to be the last will and testament of the said Moses Overton. That he left, surviving, children and grandchildren, the plaintiffs and defendants, his only heirs, as hereinafter set out. That the plaintiffs Enoch Overton, Albert Overton, Isaac Overton, and the defendant James Overton, are the only sons, surviving, of the said Moses Overton, deceased. That the defendant Charles Overton is a grandson of the said Moses Overton, being the only child of Alexander Overton, a deceased son of the said Moses Overton. That the defendants Robert Overton and Nancy Curtis are grandchildren of the said Moses Overton, being the only children of Joseph Overton, deceased, a son of the said Moses Overton. That plaintiffs Mary A. Wayman, Susan J. Young, and Martha A. Frakes are the daughters of the said Moses Overton, deceased. That defendants Nancy Curtis and Isaac Curtis are husband and wife. That plaintiffs Stephen Wayman and Mary A. Wayman are husband and wife. That plaintiffs Albert Young and Susan J. Young are husband and wife. That plaintiffs Marion Frakes and Martha A. Frakes are husband and wife. That Joel H. Shelly is the executor with the will annexed of the said Moses Overton, deceased, and is now acting as such, and has in his possession the personal assets of deceased, including the six hundred dollars hereinafter set out. That the said Joel H. Shelly was, on the ____ day of ____, 1891, by the probate court of Mercer county, duly appointed executor of the last will and testament of the said Moses Overton, deceased, gave bond as such, was duly qualified as such, and has ever since that time, and now is, acting as such executor. That the defendant James Overton is a son and an heir of the said Moses Overton, and refuses to be made party plaintiff herein, and therefore is made a defendant in this case. That the defendants Robert Overton, Nancy Curtis, and Charles Overton, as well as Isaac Curtis, refuse to be made parties plaintiff herein, and are therefore made parties defendant in this suit. That defendant Randolph Overton is a son of defendant James Overton. That, on the 23d day of December 1890, and for a long time prior thereto, the said Moses Overton was the owner in fee simple of the following described real estate, situate in Mercer county, Missouri, to wit: The southwest quarter of the southwest quarter, and ten acres off the south side of the southeast quarter of the southwest quarter, of section No. three (3), and all that part of the northwest quarter of the southeast quarter of the northeast quarter of section (4) four lying east of Grand river, and ten acres in the northeast corner of the northeast quarter of the northeast quarter of section (9) nine, all in township No. sixty-five (65), of range No. twenty-four (24), in all ninety-one acres, which said real estate plaintiffs allege is, and was at the time aforesaid, of the value of two thousand dollars. That, on the said 23d day of December, 1890, the said Moses Overton, who was then of the age of eighty-four years, resided with the defendants James Overton and Randolph Overton. That the said Moses Overton, at the time last aforesaid, and for a long time prior thereto, and from the said 23d day of December, 1890, until the time of his death, to wit, March 22, 1891, was, by reason of old age, mental imbecility, and physical debility, so diseased in body and in mind as to be totally incompetent and incapacitated to transact any business whatever, and for the causes aforesaid was unable to know or understand the value of his property, or to...