Priddy v. Boice

• Decision Date: 22 December 1906
• Citation: 201 Mo. 309,99 S.W. 1055
• Parties: PRIDDY et al. v. BOICE.
• Court: Missouri Supreme Court

99 S.W. 1055

201 Mo. 309

PRIDDY et al. v. BOICE.

Supreme Court of Missouri, Division No. 1,

December 22, 1906.

1. VENUE — CHANGE — DISQUALIFICATION OF JUDGES—DIVISIONS OF SAME COURT.

Where application was made for a change of venue, in an action pending before one division of the Jackson county circuit court, the applicant could only disqualify the judge of that division, and the case was properly sent to another division of the same court.

2. SAME—RIGHT TO MORE THAN ONE CHANGE.

Where a case was sent to another division of county circuit court on a change of venue, the applicant could not procure another change.

3. APPEAL — ABSTRACT OF RECORD — SUFFICIENCY.

The Supreme Court would not review alleged error in the admission or exclusion of evidence, where the abstract of record failed to point out any specific testimony which was offered and excluded, and showed no objection to the evidence complained of, nor exceptions to the action of the trial court in admitting or excluding such evidence.

4. EVIDENCE — DOCUMENTARY — CENSUS RETURN—ADMISSIBILITY.

Copies of United States census returns, certified by the Secretary of the Interior, showing the ages of members of decedents' family, were admissible as bearing upon an issue as to the ages of decedents at the time they executed a deed in 1853.

5. QUIETING TITLE—RELIEF TO DEFENDANT— CANCELLATION OF POWER OF ATTORNEY— JUDGMENT.

In an action to quiet title, a judgment on defendant's cross-petition, decreeing a cancellation of a power of attorney executed by plaintiff, authorizing the attorney to sue for the recovery of, and to sell, the land, was not erroneous, though the power of attorney embraced other lands, since the judgment only canceled it as to the land involved in the suit.

6. LIMITATION OF ACTIONS—SUCCESSIVE DISABILITIES—DISAFFIRMANCE OF DEED MADE DURING MINORITY — DISAFFIRMANCE — EFFECT OF MARRIAGE.

The marriage of a woman after reaching her majority does not interrupt the running of the statute of limitations against her right to disaffirm a deed made during minority.

Appeal from Circuit Court, Jackson County.

Action by G. W. Priddy and others against H. S. Boice. From a judgment for defendant, plaintiffs appeal. Affirmed.

Samuel P. Forsee, William C. Forsee, and H. H. McCluer, for appellant. C. O. Tichenor, O. H. Dean, and Lathrop, Morrow, Fox & Moore, for respondent.

GRAVES, J.

In this action the petition is in two counts. The second count is an ordinary petition in ejectment. The first count is lengthy but the salient facts pleaded are as follows: that Thomas Jones died in Jackson county, Mo., in 1843, leaving nine minor children and a widow; that among these children were Nancy Jones and Elizabeth Jones; that Nancy married James J. Priddy in 1850; that in about the year 1854 Elizabeth, yet a minor, married William Linvill; that Thomas Jones, at the time of his death, was seised of lands in Jackson county, Mo., of which there was a tract of land (minutely described in the petition) which was duly assigned to Martha Jones, his wife, for life in lieu of dower in all his lands; that Martha, the widow of Thomas Jones, died in 1868; James J. Priddy died in July, 1896; that his wife Nancy died April 10, 1892; that Elizabeth Linvill died November 3, 1892; that William Linvill is still living; that Martha Jones held possession of this tract of land until her death in 1868; that on May 5, 1853, Nancy Priddy and her husband and Elizabeth Jones executed a deed to Lott Coffman in which they attempted to convey all their interest (being a two-ninths interest) in said lands to said Coffman; that at the date of said deed both Nancy and Elizabeth were under the age of 21 years; that long before the beginning of the suit, the plaintiffs, who are the lineal descendants of Nancy and Elizabeth, disaffirmed the said deed, and gave record notice thereof; that both Nancy and Elizabeth disaffirmed said deed prior to their death; that the plaintiffs now so disaffirm said deed and claim a two-ninths interest in the land mentioned in said deed; that the land sued for and involved in this suit is a part of the tract held by Martha Jones aforesaid; that said land involved in this action is in the possession of the defendant, Boice, who denies that plaintiffs have any interest therein; that Elizabeth Jones was married to William Linvill while yet under 21 years old; that in 1852, James J. Priddy conveyed his estate by curtesy to Lott Coffman; that, immediately after executing the deed in 1853, Priddy and wife and Elizabeth Jones removed from Missouri, and never thereafter returned. These are the substantial facts in the first count of the petition. There are allegations showing the relationship of the parties plaintiff to Nancy Priddy and Elizabeth Linvill, and allegations as to the minority of some and the due appointment of the next friend named in the petition. By the prayer of the petition the court is asked to ascertain, determine, and declare the interest of all parties to the action in and to the real estate involved in the suit, which is particularly described, and to declare said deed from Nancy Priddy and husband and Elizabeth Jones to Lott Coffman to be void and of no effect and for such other and further relief as to the court may seem proper.

The answer in the first count thereof is a general denial. In the second count of the answer the 30-year statute of limitations is invoked. By the third count of the answer the defendant avers the deed from Nancy Priddy and husband and Elizabeth Jones to have been executed after Nancy Priddy was more than 21 years of age, and at a time when Elizabeth Jones was unmarried, and of lawful age, and that the said Elizabeth Jones became 21 years of age long before her marriage, and at no time disaffirmed said deed, although more than a reasonable time for that purpose had elapsed after she had reached her majority and before her marriage. By the fourth count of the answer is alleged the great advance in value of the whole property of which the property in dispute forms a part, and the numerous valuable improvements put on all of the property, formerly in the possession of Martha Jones, as well as on the portions thereof in dispute. It is further alleged that all this was done with the knowledge of the plaintiffs and their ancestors, and, for that reason, there has been laches, and plaintiffs are estopped from claiming title. The fifth count of answer is in the nature of a cross-bill wherein it is contended that the claim of plaintiffs and two certain powers of attorney given by Mrs. Priddy and husband and Mrs. Linvill and husband to S. P. Forsee, are clouds upon defendant's title. The prayer in said count is as follows: "Wherefore, this defendant prays for the order and decree of this court adjudging that the title to the property in controversy is in this defendant free and clear of any claim on the part of these plaintiffs, and that the said deed made by James J. Priddy, Nancy A. Priddy, and Elizabeth Jones in 1853 may be decreed to be the irrevocable deed of the said grantors, and that the plaintiffs be decreed to have no right, title, or interest in and to said property of this defendant, and for such other and further relief as may be equitable and just." Reply was general denial, coupled with some other matter alleging notice of disaffirmance upon the part of Mrs. Priddy and Mrs. Linvill, given by the record of the powers of attorney to S. P. Forsee. The cause was pending in division 1 of the circuit court of Jackson county, over which Judge James Gibson was presiding. On November 5, 1902, plaintiffs filed application for a change of venue to some county other than Jackson, charging that each of the judges of the five several divisions of that court were prejudiced against plaintiffs, and that "the opposite party, the defendant herein, had an undue influence over the minds of each of said judges." Knowledge of said conditions was said to have been brought home to plaintiffs on November 4, 1902. This motion was not disposed of until November 29, 1902. On November 4, 1902, it appears that Hon. Andrew F. Evans had been elected judge of division 5 to succeed Judge Teasdale, and he qualified on the 29th day of November, 1902. On November 22d there was filed a voluminous motion asking Judge Gibson to take up and pass upon the application for change of venue. Notice was given that this last-named motion would be called up on November 24th. It is alleged that Judge Gibson refused to take it up on the 24th, and did not take it up until the 29th, at which time he granted a change of venue to division No. 5. A lengthy colloquy between court and counsel is said to have taken place on the 29th, and is printed in the record, but, in our view of the law of the case, it is not necessary to set out these random shots. On December 3, 1902, in division 1, the plaintiff filed a lengthy motion to strike out the following part of the order made on November 29th, which part said motion was leveled against is as follows: "And doth order that the venue of this cause be changed from this court to divison No. 5 of the circuit court of Jackson county, Missouri, at Kansas City, which said division No. 5 is now presided over by Hon. Andrew F. Evans, the regular judge thereof, to which action of the court in sending said cause to said division No. 5, said plaintiffs except." This motion was taken up on December 6, 1902, and a mass of testimony, documentary and otherwise, taken and heard, which will be noticed in the course of this opinion if necessary. The motion was by Judge Gibson overruled. Again on December 6th, after the disposition of the motion to strike out plaintiff filed in division No. 1 a motion asking for leave to file an amended application, in which was included the name of Hon. Andrew F. Evans, as well as Hon. F. C. Farr, who was acting as special judge in division No. 4, Judge Henry, the regular judge, being sick. This...