Partridge v. Partridge
| Decision Date | 18 May 1909 |
| Parties | JOHN T. PARTRIDGE et al., Appellants, v. ELIZABETH PARTRIDGE, et al |
| Court | Missouri Supreme Court |
Appeal from Nodaway Circuit Court. -- Hon. Wm. C. Ellison, Judge.
Affirmed.
George W. Partridge and Joseph H. Sayler for appellants.
(1) The alleged deed of March 7, 1895, from James M. Partridge and Elizabeth, his wife, to Agnes Smith, purporting to convey all their undivided shares in the eighty acres of land situate in section 33, township 64, range 34, was absolutely void, and should not have been admitted in testimony. Mudd v Dillon, 166 Mo. 110; Dixon v. Finnegan, 182 Mo 111. (2) The defective description of the land in the alleged deed is a patent ambiguity and extrinsic evidence is not admissible to remove such ambiguity. Mudd v. Dillon, 166 Mo. 120; Williams v. Husky, 192 Mo. 333, 24 Am and Eng. Ency Law, 653; 1 Jones on Real Property, sec. 23. (3) And where such a deed is voluntary one to a conduit of title, or a gift, a court of equity will not enforce it or undertake to correct it. Ford v. Unity Church Society, 120 Mo. 498; Pitts v. Weakly, 155 Mo. 133; Shroyer v. Nickoll, 55 Mo. 264. (4) Where one of the original parties to the contract or cause of action in issue and on trial is dead, other parties to such contract or cause of action shall not be admitted to testify, nor can an attorney or minister who acts as a legal and spiritual adviser testify concerning land which the grantor intended to convey, as they are confidential communications. Sweet v. Owens, 109 Mo. 1; In re Estate Soulard, 141 Mo. 642; R. S. 1899, secs. 4652 and 4659. (5) Where the finding and judgment of the court is without evidence to support it, the appellate court will reverse the judgment. Howard v. Coshow, 33 Mo. 118; Rontsong v. Railroad, 45 Mo. 236; More v. Hutchison, 69 Mo. 429; McCartney v. Finnell, 106 Mo. 453; Flanders v. Green, 50 Mo.App. 371.
T. A. Cummins for respondents.
The deed from James M. Partridge and Elizabeth Partridge, his wife, is not void and was properly admitted in testimony. Partridge owned an interest in but one eighty acres of land in section 33, or any other section. It was susceptible of identification, and the title passed. Such a deed may not have a valuable consideration, but has a meritorious consideration. The case is simply that of a husband with small means making provision for his wife in her old age, and there is no good reason why an admitted mistake in the description of the property therein conveyed should not be corrected. Hutsell v. Crewse, 138 Mo. 1. The deed is but the evidence of an executed contract, founded upon a meritorious consideration, and the court simply corrects the evidence of that contract so as to make it conform to the contract as actually made and executed. Hutsell v. Crewse, supra; Crawley v. Crafton, 193 Mo. 421; Newlands, Contracts, p. 70; 2 Story's Equity (13 Ed.), 793; Adams' Equity (8 Ed.), pp. 97, 98.
This is a suit by the children and heirs at law of James M. Partridge, deceased, for partition of the south half of the southwest quarter of section 33, township 64, range 34, in Nodaway county, against Elizabeth Partridge, widow of said James M. Partridge, deceased, and her children by a former marriage with John C. Smith, deceased.
Plaintiffs state and the evidence tended to show that the said John C. Smith died seized of the said tract of land, leaving as his widow, Elizabeth Smith, since intermarried with and now the widow of James M. Partridge, and the following named children, to-wit: Richard Smith, Margaret Smith, Mary Smith, Anna Smith and Agnes Smith.
John C. Smith, by his last will, duly probated, devised this land to his said widow and children, in equal shares. After the marriage of Mrs. Smith to James M. Partridge and during said marriage James M. Partridge purchased the undivided one-sixth interest of Richard and Margaret Smith, two of said devisees, being an undivided two-sixths of said tract. Afterwards on March 7th, 1895, James M. Partridge, having no other property than said one-third of said eighty acres, attempted to convey the same to his wife, said Elizabeth Partridge, but as is alleged, by mistake of the scrivener the interest of said James M. Partridge was described as "all their undivided shares in the eighty acres of land situated in section 33, township 64, range 34, in the county of Nodaway, and State of Missouri." This deed was made to Agnes Smith as a conduit, and the said Agnes then conveyed the same to her mother, but the last mentioned conveyance was never recorded and was lost, but the said Agnes Smith, who was at the time intermarried with one Doran, executed and delivered to her mother another deed to said interest in order to perfect the title of record, in said Elizabeth. James M. Partridge died in 1898, and the said Elizabeth has been in the actual and exclusive possession of said tract up to the commencement of this suit in November, 1905. In their answer defendants ask to have the deed of James M. Partridge to Agnes Smith for said Elizabeth Partridge corrected and reformed in the description of said land, so as to conform to the intention and agreement of said James M. Partridge, and so that the same shall read: "All their undivided shares in the eighty acres of land situated in section 33, township 64, range 34, being the south half of the southwest quarter of said section." The circuit court decreed a correction of said deed and found that plaintiffs, as the heirs at law of James M. Partridge, had no interest or title in said tract and dismissed their bill. From this decree the plaintiffs appeal.
I. The evidence tended to prove and so the circuit court found that James M. Partridge had no title or interest in any other land in section 33, township 64, range 34 in Nodaway county, save and except the two-sixths of the eighty acres, involved in this suit, to-wit, the south half of the southwest quarter of said section 33. ...
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