Reed v. Painter

• Decision Date: 06 July 1898
• Citation: 145 Mo. 341,46 S.W. 1089
• Parties: REED et al. v. PAINTER et al.
• Court: Missouri Supreme Court

46 S.W. 1089

145 Mo. 341

REED et al. v. PAINTER et al.

Supreme Court of Missouri, Division No. 2.

July 6, 1898.

WITNESS — COMPETENCY — LIMITATIONS — RECOVERY OF REALTY BY HEIRS — SUIT BY WIFE — IMPLIED TRUST.

1. A witness not a party to a former suit to recover land from her stepfather is competent to testify in a subsequent suit against his heirs, notwithstanding his death.

2. Rev. St. 1889, c. 6764, provides that no action for the recovery of lands or the possession thereof shall be maintained unless the plaintiff, his ancestor, predecessor, or grantor, was seised or possessed of the premises within 10 years before the commencement thereof. Section 6767 declares that, if any person entitled to commence such an action be a married woman when such right accrues, the time such disability shall continue shall not be deemed any portion of the time limited; and section 6769 provides that if any person entitled to commence such an action shall die during coverture, and no determination or judgment be had of the title or right of action accrued to her, her heirs may commence the action within three years after her death, but not afterwards. Held, that where the husband fraudulently took title to land belonging to his wife in his own name, and she died during coverture, the right of her heirs to recover it was barred after the expiration of three years from her death.

3. A wife may sue her husband in equity during coverture to recover title to her property, which he wrongfully took in his name.

4. Where a husband fraudulently appropriates property belonging to his wife, an implied, and not a direct, trust arises, to which the statute of limitation applies.

Appeal from court of common pleas, Cape Girardeau county; Alex Ross, Judge.

Suit by Amelia T. Reed and others against Sophia Painter and others. From a decree in favor of plaintiffs, defendants appeal. Reversed.

Wilson Cramer, for appellants. R. G. Ranney and John A. Hope, for respondents.

GANTT, J.

On the 12th day of April, 1890, plaintiffs brought suit against John Painter in the circuit court of Cape Girardeau county, alleging, in the first count of their petition, that he had converted to his own use the proceeds of an insurance policy on the life of their father, John H. Clark, for which they sought to make him account; and in the second count charged that he fraudulently took the deed to certain lands in his own name, instead of in the name of his wife, and prayed that he might be declared a trustee for her heirs, the plaintiffs, and required to account for rents and profits. John Painter died pending that suit, July 25, 1891, and thereupon plaintiffs caused it to be revived against his administratrix, Sophia Painter, and proceeded against her alone. On the trial of that case in the circuit court, the court dismissed the second count because the heirs of John Painter were necessary parties, and it stated no cause of action against the administratrix. At the same time the circuit court on the first count found that all the heirs of John H. Clark were barred by limitation excepting his daughter Mrs. Amelia T. Reed, who married before her father's death, and was still under coverture, and for her the court gave judgment for $1,659.15. That judgment was reversed by this court at the April term, 1895. Reed v. Painter, 129 Mo. 674, 31 S. W. 919. More than two years after the death of John Painter, to wit, on September 5, 1893, plaintiffs instituted this suit in the Cape Girardeau court of common pleas against the heirs of John Painter, pleading the same cause of action stated in their second count, which was dismissed in the circuit court. The substance of the petition is that plaintiffs are the heirs at law of Mrs. Caroline Painter; that at the time of her marriage to John Painter she was the owner in fee of a part of lot No. 4, in range D, in the city of Cape Girardeau; that said lot was well worth $4,500; that said Painter fraudulently pursuaded his wife to join him in a conveyance of said lot; that at that time one Archibald Dorman was the owner of a small farm in Cape Girardeau county, near the city of Cape Girardeau, containing 87.37 acres; that said Painter, by making fraudulent representations, induced and persuaded said Caroline, his wife and the mother of plaintiffs, to exchange her said lot for the said farm of the said Dorman, and, instead of taking a deed from said Dorman to said Caroline, fraudulently took a deed from said Dorman to himself to said farm; that the only consideration for said farm was the deed from said Caroline and said Painter conveying to said Dorman her said lot; that, knowing it belonged to his wife, said Painter permitted her children by her former husband, Clark, to occupy it for a while; that, as an inducement to obtain her consent to said exchange, he represented to his said wife that it would be a great advantage to her to move on it while her sons were young and inexperienced; that subsequently these plaintiffs discovered that said deed from Dorman was taken in the name of said Painter, and he promised to have it corrected; that the rents and profits were $250 a year. To this petition the defendants who appeared filed a separate answer, and admitted they were heirs of John Painter, but denied all the other averments in the petition. They also pleaded that, if the cause of action existed as set out in the petition, it accrued to Mrs. Caroline Painter, and was well known to her, and she died in 1884, and plaintiffs, who are her heirs, failed to bring this suit within three years after her death, and they pleaded in bar the statute of limitations. They also pleaded laches in not commencing and prosecuting this suit until nine years and five months after the death of their mother, and two years after the death of said John Painter, the ancestor of defendants. The cause was heard in September, 1894, and decided in January, 1895, by the common pleas court. The judge made a special finding of facts, and rendered a decree for plaintiffs, from which defendants appeal.

The evidence is preserved in full. The conveyances show that Mrs. Clark received a warranty deed to the town lot on June 23, 1870. On the 17th of March, 1874, Archibald Dorman conveyed the farm referred to in the pleadings to John Painter for $4,500. On the 23d of March, 1874, Caroline Painter and John Painter, her husband, conveyed the town lot of Mrs. Painter to Dorman for $4,500. John Green, a negro man, testified for plaintiffs that he worked for Mr. Painter in 1873, 1874, and 1875, doing general farm work. During that time he understood Mr. Painter to say he had traded the town lot for the Dorman farm, but he could not say what he said; that Mrs. Painter asked him if he did not think it was a good thing for her boys. On one occasion he said he was not going to give the farm to the boys till he saw further. He did not know how they were going to get along. He heard Mr. and Mrs. Painter talking when he was making the fire, but they were not directing their conversation to him. He understood them to say they had sold the town place, and bought the farm, and thought it was a good exchange for their boys, to get them out of town. The witness said that Mr. Painter did not say a great deal about it. He did not hear what he said. Lind, the butcher, said he and Dorman dealt with each other, and he undertook to tell what Dorman told him, — that he traded his farm for the lot, — all clearly hearsay. Mr. Joyce owned a farm adjoining the Dorman farm, and on one occasion he wanted a lane opened between the two places, so that he could get out to the gravel road. He went to see Mr. Painter about it. Painter had no objection to the opening of the lane. "He said we could move his fence in two feet." Joyce told him it would be necessary to make some rails, as the fence was poor, but Mr. Painter remarked he would not spend any money on the place; that the farm did not all belong to him, — at least, he conveyed the idea to Mr. Joyce. This conversation was in 1883 or 1886. In addition to the foregoing, plaintiffs read the deposition of Mrs. Martha Holcomb, one of the plaintiffs, and a daughter of Mrs Caroline Clark Painter. To this deposition defendants objected, for the reason that she was incompetent to testify by reason of the death of John Painter. Objection overruled. The deposition is as follows: "My mother died in May. My mother married the second time to John Painter, in 1872, to the best of my knowledge and belief. I lived with my mother, after she married John Painter, about ten years. They were living at Cape Girardeau, Missouri. I am acquainted with the part of lot 4, range D, of the city of Cape Girardeau, fronting on Main street, which formerly belonged to my mother. I know the place known as the `Dorman Farm,' lying near and west of the city of Cape Girardeau. It belonged, when I first knew of it, to Mr. Dorman, to the best of my knowledge and belief. A day or two before the exchange of property — lot 4, on Main street, for the Dorman farm — I heard my mother and Mr. Painter discussing the matter. To the best of my recollection, it was not my mother's desire to make the exchange. Her objection was that the property rightfully belonged to her. Upon a promise from Mr. Painter that he would have the property deeded to my mother, and that the boys should use it for their home, she consented to make the exchange. To the best of my knowledge and belief, it was at least two years before my mother knew that the property in question was not deeded to her after the exchange was made. After my mother discovered that the property was not deeded to her, I have heard her ask him repeatedly to have the deed changed, and as often as she would ask he would promise to do so, alleging that he thought the property had been deeded to her in the transfer. After my mother's death, in parlor of house owned by Mr. Painter, where I made my home, and before my marriage, I heard...