Potter v. Adams
| Decision Date | 26 November 1894 |
| Citation | 28 S.W. 490,125 Mo. 118 |
| Parties | Potter et al. v. Adams et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Morgan Circuit Court.
Reversed.
Wm. S Shirk for appellants.
(1) Even if it were admitted that John Hupp and wife had made and delivered a deed to Thomas Baine prior to the time they made the deed in evidence, to Evaline E. Baine, on the eleventh day of May, 1867, yet it stands uncontradicted and undisputed, from plaintiffs' own evidence, that, if any such deed ever existed, it was delivered up and destroyed by the mutual consent of the parties to it, and the deed to Mrs Baine made in lieu of it. While this may not have technically, reinvested John Hupp with the title to the land in dispute, it yet had the effect to forever estop Thomas Baine, and all who might thereafter claim under or through him, from asserting any claim or title to the land described in it. Farrar v. Farrar, 4 N.H. 191; Parker v. Cane, 4 Wis. 1; Mussey v. Holt, 24 N.H. 248; Speer v. Speer, 7 Ind. 178; (S. C., 63 Am. Dec. 419, note.) The evidence to the effect that such former deed, if indeed it ever existed, had been canceled and destroyed by mutual consent, and a new one made in lieu of it, being as before stated, undisputed and uncontradicted from the plaintiffs' own evidence, and plaintiffs' sole claim being through and under said Thomas Baine, the defendants' demurrer to plaintiffs' evidence should have been sustained. (2) The court erred in permitting the plaintiffs to introduce evidence tending to prove that the deed from Hupp and wife to Mrs. Evaline E. Baine was made to her, instead of Thomas Baine, in order to defraud his creditors, and in submitting that issue to the jury, and this for several reasons: First. This is a simple action of ejectment. Upon the theory that the deed from Hupp and wife should have been made to Thomas Baine, but was in fact made to Evaline E. Baine, to defraud the creditors of Thomas Baine, the legal title was nevertheless vested in Evaline E. Baine, and at most an equitable title only in Thomas Baine. Plaintiffs, at these execution sales, acquired only the title of Thomas Baine. This title being equitable only, the plaintiffs stood before the court, holding only an equitable title. An equitable title will not support the action of ejectment. Ford v. French, 72 Mo. 250; Dunlap v. Henry, 76 Mo. 106; Mason v. Black, 87 Mo. 329; Williams v. Carpenter, 35 Mo. 52; Picket v. Jones, 63 Mo. 195. Second. Said evidence was wholly contradictory to, and inconsistent with, the theory and evidence as to the existence of a former deed to Thomas Baine. Third. An action to set aside Mrs. Baine's deed, as having been made to defraud the creditors of Thomas Baine and to subject the land to the payment of his debts, would have become stale and barred by the statute of limitations in ten years. Rogers v. Brown, 61 Mo. 187; Kline v. Vogel, 90 Mo. 239; Sherwood v. Baker, 105 Mo. 472; Martin v. Smith, 1 Dill. 85; Williams v. Allison, 33 Iowa 279; Bank v. Dalton, 9 How. 522. Fourth. Such evidence is not admissible in an action of ejectment at all. Smith's Lessee v. Hunt, 13 Ohio 260; Reynolds v. Ingersoll, 11 Smedes & Marshall, 249; Hollingsworth v. Walker, 13 S. Rep. 6; Paldi v. Paldi, 54 N.W. 903; Ward v. Huggins, 32 P. 740. (3) Plaintiffs' action is barred by the statute of limitations. Plaintiffs' own evidence shows that Mrs. Baine personally occupied the premises under her deed continuously and peaceably for over thirteen years, and through tenants for eight years longer, until she sold the land in 1888, a period of twenty-one years. And defendants, as her grantees, occupied it under her for three years longer, until this action was begun, being a total of over twenty-four years. This gave her a perfect legal title. Merchants Bank v. Evans, 51 Mo. 335; Ridgeway v. Holliday, 59 Mo. 444; Hamilton v. Boggess, 63 Mo. 233; Houx v. Batteen, 68 Mo. 84; Allen v. Mansfield, 82 Mo. 688.
D. E. Wray for respondents.
(1) Thomas Baine purchased the land from John Hupp, and paid therefor himself. He entered into possession, claiming it as his own under said purchase, and held possession at least a year in that capacity. There was never any change of possession from him to his wife. There was no adverse holding upon her part as against him. It was perfectly competent for the plaintiffs to prove that Thomas Baine bought the land, that he went into possession under his purchase, and that a deed was executed to him therefor. If he remained in possession ten years, claiming it as his own, it is wholly immaterial whether the deed from John Hupp to him was properly sealed or acknowledged, or in correct form. His possession ripened into an absolute title, and Potter purchased this title at sheriff's sale. Merchants' Bank v. Evans, 51 Mo. 335; Shepley v. Cowan, 52 Mo. 559; Hamilton v. Boggess, 63 Mo. 233. (2) It was proper to permit the plaintiffs to show that the land so bought by Thomas Baine was paid for by him, and that a deed was made to him therefor, and this is true, whether the deed was shown to be a perfect and complete instrument or not. It would tend to prove the claim of title under which Thomas Baine entered upon the land, and the rights that he set up in regard thereto. It was sufficient for the plaintiffs to prove, in the first instance, that Thomas Baine purchased the land, entered into possession thereof, and held possession for more than ten years, and that they, through their fathers' purchase, had succeeded to the rights of the said Thomas Baine in the land. Menkens v. Blumenthal, 27 Mo. 198. (3) It was also proper to permit the plaintiffs to prove, in this action of ejectment, that there was a deed made to Thomas Baine, and that it was destroyed. Donaldson v. Williams, 50 Mo. 407. (4) The defendants set up and rely upon a deed made in May, 1867, to Mrs. Evaline Baine. It was perfectly competent for the plaintiffs to show that this deed was made at the instance of Baine for the purpose of hindering, delaying and defrauding creditors. This is true, notwithstanding the suit is an action in ejectment. It has been decided that a plaintiff in ejectment may destroy the effect of a deed relied upon by the adverse party by showing that it was fraudulent. Chandler v. Bailey, 89 Mo. 641. (5) First. The defendants are not in a condition to claim any rights under an equitable estoppel arising from the destruction of the deed by Thomas Baine, and the execution of a new deed to his wife. In the first place no estoppel is pleaded, and it is settled law in this state that an estoppel in pais, in order to avail a defendant, must be set up and pleaded. Bank v. Doran, 109 Mo. 40; Bray v. Marshal, 75 Mo. 327. Second. If the old deed was canceled, and a new deed executed to Mrs. Baine for the purpose of hindering, delaying and defrauding the creditors of Thomas Baine, certainly the creditors of Thomas Baine would not be estopped from contesting the validity of the second, and because Thomas Baine had consented to a destruction of the first in order that the second might be executed. Such a position would be untenable. (6) There was no change in the possession of the land to his wife and no adverse holding on her part as against him, nor was there any finding of the jury to that effect. His money paid for it, he managed and controlled it. The plaintiffs, claiming under Thomas Baine through the sheriff's sale, would not be prevented by the lapse of time from showing (inasmuch as Baine was in possession) that the deed from Baine's wife was fraudulent. Sebree v. Patterson, 92 Mo. 451.
The plaintiffs are the widow and heirs of Samuel W. Potter. They brought this action to recover one hundred and twenty acres of land in Morgan county. All parties claim under John Hupp.
The plaintiff's evidence tends to show that John Hupp sold the land in February, 1866, to Thomas Baine; that Baine and his wife moved upon the land at that date, and continued to reside thereon until 1879 or 1880, a period of about fourteen years; that Hupp executed and delivered a deed, dated in February, 1866, conveying the land to Thomas Baine, which deed was never recorded; and, to defraud his creditors, Baine destroyed this unrecorded deed and caused Hupp to execute another one of date May 11, 1867, conveying the land to a trustee for the use of his wife.
The plaintiff also read in evidence two sheriff's deeds, dated in October, 1884, conveying all the title and interest of Thomas Baine to Samuel W. Potter. These deeds are based upon judgments rendered against Thomas Baine in 1883 and 1884. One of the judgments seems to have been based upon a debt contracted by Thomas Baine prior to the date of the deed from Hupp to J. H. Potter in trust of Evaline Baine.
The defendants read in evidence the deed from Hupp to J. H. Potter, before mentioned, conveying the land to Potter in trust for the sole use and benefit of Evaline Baine. As has been said, this deed bears date of May 11, 1867, and was duly recorded on the eighteenth day of the same month and year. The defendants then read in evidence a deed from Evaline Baine and her husband to the defendant Howard Adams and to one Philip Adams, dated August 8, 1888, and recorded in 1889.
After Baine and wife left the land in 1879 or 1880 they leased it to various persons down to the date of the last mentioned deed. For the year commencing March 1, 1883, the lease appears to have been made by Thomas Baine in his own name and for that year the rents were paid to him. For the other years the land was rented by Mrs. Baine and she received the rents. She and her husband resided together at all...
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