Rice v. Shipley

• Decision Date: 18 December 1900
• Citation: 60 S.W. 740,159 Mo. 399
• Parties: RICE et al. v. SHIPLEY et al.
• Court: Missouri Supreme Court

60 S.W. 740

159 Mo. 399

RICE et al. v. SHIPLEY et al.

Supreme Court of Missouri.

December 18, 1900.

APPEAL — REVIEW — RECORD — EVIDENCE IN EQUITY CASE — WITNESSES — COMPETENCY — TRANSACTIONS WITH DECEDENT — WIFE'S SEPARATE PROPERTY — VESTED RIGHT — LAND CONVEYED TO HUSBAND — EVIDENCE OF WIFE'S OWNERSHIP.

1. Under Rev. St. 1889, § 2304, authorizing the supreme court to examine the record and

award a new trial, or reverse or affirm, or give such judgment as the trial court ought to have given, as to it shall seem agreeable, an equity case, the record of which contains all the evidence offered, can be reviewed on the legitimate evidence therein, regardless of any errors in the rulings of the trial court on its admissibility, and such judgment ordered as that evidence warrants.

2. Under Rev. St. 1889, § 8918, forbidding the testimony of a party to a contract or cause of action in issue, or of one claiming under him, in cases where the other party thereto is dead, testimony of a plaintiff to the facts of transactions between her deceased father and mother, by which it is sought to establish the title of herself and her co-plaintiffs as heirs of her mother against defendants, devisees of her father, is inadmissible.

3. The vested right of a wife in separate property acquired under the laws of another state, in which she and her husband resided, is entitled to the same protection of the laws of Missouri on their becoming residents thereof as any other vested right of property, though the same right could not have been acquired in Missouri.

4. On an issue between the heirs of a deceased wife and her husband's second wife and child as to the ownership of 80 acres of land which he devised to the latter, there was evidence tending to show that deceased and his first wife came from Pennsylvania, bringing with them, as her separate property, from $2,500 to $3,000, which she had partly inherited and partly accumulated by her own personal exertions, and which they intended to invest in land for a home, and that the land was bought and title taken in the husband's name. Until the wife died and the husband remarried, he spoke of the land as hers to numerous witnesses, and as having been bought with her money. He conveyed to her adjoining land bought apparently by himself, explaining that he wanted to pay her in part for what she had paid for the 80 acres. It also appeared that he was not always prudent and thrifty, and was absent from home a great deal, being a locomotive engineer. On the other hand, she was thrifty, industrious, and capable, managing all the business of the household and farm so long as she was well, as she formerly managed her own business in Pennsylvania. Held, that it satisfactorily appeared that the land was bought with her money, and, though taken in his name, was treated as her property as long as she lived, and hence her heirs were entitled to the same.

Gantt, C. J., and Robinson, J., dissenting.

In banc. Appeal from circuit court, Cass county; W. W. Wood, Judge.

Action by Alvis P. Rice and others against Sarah E. Shipley and others to set aside certain deeds and devest the title acquired thereunder. From a judgment for defendants, plaintiffs appeal. Reversed.

The following is the opinion of the court in division (BRACE, P. J.):

"In January, 1895, John R. Shipley died testate, seised of two contiguous tracts of land in Cass county, Missouri, — one containing 80 and the other 60 acres, — described in the petition. He had been twice married. The defendants are his second wife and widow, and her child, devisees of said real estate under the will, and the administrator c. t. a. of his estate. The plaintiffs are the heirs at law of Louise C. Shipley, the first wife of said testator, who died in November, 1887, intestate, being the children, and their descendants, of that marriage. John R. and Louise C. Shipley were married about the year 1850 in the state of Pennsylvania, and continued to reside there until the year 1870, when they moved with their four children, Emma, Virginia, Louisa, and Albert, to Cass county, Missouri, where the said John R. Shipley purchased the 80-acre tract of M. M. & Isaac Wagner, who by deed dated March 19, 1870, for the recited consideration of $2,960, conveyed said tract to him. Afterwards the said John R. purchased the 60-acre tract of W. J. R. Bailey, who by warranty deeds dated October 21, 1874, and March 26, 1877, conveyed the same to the said Louisa C. Shipley. Afterwards, by deed dated January 21, 1887, the said Louisa C. and John R. Shipley conveyed the 60-acre tract to Frank L. Rice, who by deed dated January 22, 1887, conveyed the same to the said John R. Shipley. On the 5th of March, 1895, the plaintiffs instituted this suit. The petition is in two counts. The gravamen of the charge in the first count is `that the 80-acre tract was purchased by the said John R. Shipley with the money of his wife, the said Louisa C., which was her separate estate, and the deed taken in his own name in trust for her'; and the prayer is that defendants be devested of whatever title they may have as devisees or heirs at law of the said John R. Shipley, deceased, in that tract, and that the title thereof be vested in plaintiffs. The charge in the second count is that the deeds from the said Louisa and husband to Rice, and from Rice to the said John R. Shipley, to the 60-acre tract, were without consideration, and were made for the purpose of vesting the title in him in trust for the benefit of the children of the said Louisa C., born of her marriage with the said John R., and that she was induced to execute the deed by the persuasions and promises of her husband at a time when she was in such a condition of body and mind as to be incapable of transacting any business whatever, wherefore she prays like relief as in the first count as to that tract. Issue was joined by answer on both counts, and on the trial the court found the issues on the first count for the defendants, and on the second count for the plaintiffs. To the action of the court in finding for the defendants on the first count the plaintiffs excepted, and in due time filed their motion for a rehearing, and for judgment in their favor on the first count, which motion being overruled they duly excepted. To the action of the court in finding for the plaintiffs on the second count the defendants excepted, and in due time filed their motions for new trial and in arrest of judgment, which motions were sustained by the court `on the ground that the finding and judgment of the court as to the second count is contrary to the evidence.' To this action of the court the plaintiffs also excepted, elected to stand upon their judgment on the second count, and perfected their appeal.

"The practical effect of the final action of the trial court is a finding in favor of the defendants upon the issues in both counts of the petition, and of plaintiffs' appeal is to bring the whole...