Sawyer v. French
| Decision Date | 30 November 1921 |
| Parties | JOHN H. SAWYER et al., Appellants, v. EMMA FRENCH |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. Joseph D. Perkins, Judge.
Affirmed.
Hugh Dabbs and B. H. Esterly for appellants.
(1) The undisputed evidence shows that the conveyance of the property in controversy to Emma French came about solely through the recollection of Mrs. Sarah A. Sawyer, as testified to by respondent's attorney, Mr. Hackney, that the original deed, executed in 1893, was to her husband and herself jointly. Appellants insist that it would be impossible for Mrs. Sawyer to have had such recollection under the circumstances described. It would be contrary to the recognized laws of nature. The courts take judicial notice of the well known laws of nature. 16 Cyc. 854 (56); 7 Ency. Evidence, p. 902; The development of the faculty of memory may be judicially noticed. 7 Ency. Evidence, p. 908, note 32. People v. Martin, 85 Hun, 343, 32 N.Y.S. 933. (2) Estoppel consists in holding for truth a representation acted upon, when the person who made it, or his privies, seek to deny its truth and to deprive the party who acted upon it of the benefit obtained. 16 Cyc. 723-724; Bigelow on Estoppel p. 27; Chouteau v. Goddin, 39 Mo. 229; State Bank v. Frame, 112 Mo. 513; Fowler v. Carr, 63 Mo.App. 486; Spence v. Renfro, 179 Mo. 421; Union Savings Association v. Kehlor, 7 Mo.App. 158 163; Boles v. Bennington, 136 Mo. 530. Where a party has taken a position as to the ownership of property, in a proceeding in a court of record, he will thereafter be estopped from later taking an adverse position in another proceeding to the prejudice of parties to the former proceeding who relied upon the position formerly taken and would be injured were the adverse position maintained. 16 Cyc. 684. One who, with knowledge of the facts and without objection, suffers another to make expenditures on or in connection with his property under a claim of title thereto will be estopped to deny such title or right to the prejudice of that other who has acted in reliance on and been misled by his conduct. 16 Cyc. 765; Craddock v. Short, 134 Mo 449; Goods v. St. Louis, 113 Mo. 257; Stevenson v. Saline County, 65 Mo. 425; Collins v. Rogers, 63 Mo. 515.
Howard Gray for respondent.
(1) The trial court heard the conflicting testimony and found for the respondent, and this court will not weigh that testimony. St. Louis Union Trust Co. v. Hill, 223 S.W. 434; State ex rel. v. Sturgis, 276 Mo. 570, 208 S.W. 458; McGinnis v. Railroad, 268 Mo. 667; Gilbert v. Railroad, 226 S.W. 263. (2) The question of estoppel is not in this case, as it was in no wise suggested by the pleadings. When the defendant set up title to the lots and the record showed a legal title in her, if the appellants desired to raise the question of estoppel, they should have done so in their reply. Compressed Air Co. v. Fulton, 166 Mo.App. 11; McClure v. Bank, 263 Mo. 128; Dibert v. D'Arcy, 248 Mo. 617; Sanders v. Chartrand, 158 Mo. 352; Swinehart v. Railroad Co., 207 Mo. 423. (3) The appellants cannot claim that the testimony on estoppel was admitted without objection, and therefore, the objection that it was not alleged in the reply unavailable, for the reason that all the testimony offered and which appellants now claim tended to prove an estoppel was pertinent under another issue. Swinehart v. Railroad Company, supra. (4) Outside of the question of pleading, there are no facts in the case on which to base a question of estoppel. The only testimony is found in the first annual statement of Mrs. Sawyer as administratrix of her husband's estate wherein it appears that a mortgage upon this property was paid out of the personal assets of the estate. This same settlement shows that the principal of a mortgage on the farm was also paid out of the personal assets. Mrs. Sawyer only had a dower interest in that farm and her liability was one-third of an annual interest on that mortgage, Fuller v. Devolld, 144 Mo.App. 43, and yet the whole principal was paid out of the personal property in which she had an undivided one-tenth interest absolutely. Again, this was only an annual settlement and what was done on final settlement relative to this matter the record does not disclose. Again, it is an elementary principle in order for an estoppel to be available, the parties urging it must have been misled or induced to do something which they would not have done. The children were all of age and undoubtedly wanted their mother to have the home free of encumbrance, and it is unreasonable to say that even if they had known the deed was made to her and her husband, they would have protested against the payment of the mortgage. Parties invoking an estoppel must establish their case by clear, precise and unequivocal evidence. Northrup v. Colter, 150 Mo.App. 639.
Woodson and Graves, JJ., dissent.
OPINIONIn Banc.
-- Suit in partition. The parties are the nine children and heirs of Benville A. Sawyer, who died intestate in 1893. He also left a widow him surviving, Sarah A. Sawyer, the mother of his said children. The land, sought to be partitioned, consists of a farm of eighty acres, and two lots, both improved, one having a store building, and the other a residence thereon, both situated on Garrison Avenue in the city of Carthage in Jasper County. The widow died in February, 1917. John H. Sawyer, a son, and two other of said children are the plaintiffs, and Emma French, a daughter, and five others are the defendants.
The petition is in the usual statutory form of petitions for partition, alleging that plaintiffs and defendants are the owners, as tenants in common, of the said lots in the city of Carthage, each owning an undivided one-ninth interest therein, and certain interests in said farm. That the property is not susceptible of division, etc. Whereupon, plaintiffs pray that the property be sold in partition and the proceeds divided according to the respective rights of the parties.
The answer of defendant Emma French consists of a general denial, and a further allegation and affirmative defense that she is in the open, notorious and exclusive possession and the sole and exclusive owner of said city property, and the other parties have no right or title therein, and she prays to be discharged with her costs. The other defendants filed no pleading.
The reply put the answer of defendant Emma French in issue.
At the trial, there was no dispute that all the parties were owners of the farm, as stated in the petition. The sole controversy was as to the ownership of the Carthage property. The defendant Emma French claimed to own this property by virtue of a deed made to her by her mother, dated September 29, 1905. The appellants claim this deed conveyed no title to Emma French, because their father was the sole owner of the property by deed made to him alone, at the time of his death, which deed, however, was never recorded, but was lost after the father's death, while in possession of the mother. Where as, the defendant Emma French claims, that said lost deed was not a deed to the father alone, but to him and his wife, Sarah A. Sawyer, as tenants by the entirety; that her mother having survived her father, she, having obtained a deed from her mother, as aforesaid, was the sole owner of the property.
The evidence, without serious contradiction, shows that both the farm and the city property were allowed by the children to remain in possession and use of their mother as long as she lived. That the deed to the farm was in the father's name alone, and was recorded before his death. That the widow was appointed administratrix of the estate of her deceased husband in 1893, and included in her inventory of the real property belonging to the estate of her deceased husband, which was subscribed and sworn to by her, the lots in question, which were subject to a deed of trust of $ 600, and interest. Her first annual settlement was made and approved August 14, 1894, and shows that with money belonging to the estate she paid off the incumbrance, amounting to $ 648.25, on the property, and special taxes thereon amounting to $ 22.53. The final settlement is not shown in evidence.
Lenora E. Padfield, a daughter, who lived with her mother from the time of her father's death in 1893 until 1902, testified for plaintiffs that she saw the deed for the lots in question at home in her mother's charge, and it, as well as the deed to the farm, was in her father's name alone. Her mother's name was not in either of the deeds. During the time she lived with her mother she talked with her regarding the Carthage property, and her mother said it belonged to "us children and herself," "all the children had an interest in the property."
J. R. Sutter, a cousin of the parties, who resided in Kansas City, testified: That in 1899 he desired to buy the property in suit, and he went to his aunt, Mrs. Sarah A. Sawyer, and also the defendant Emma French, regarding the purchase of it. They (himself, Emma French and Sarah A. Sawyer) went to see the attorney of Mrs. Sawyer, Judge Kilgore, about it, and it was discovered that it was not possible to deliver a clear deed unless all the heirs would sign it, as he understood it. That was all that was said, except that there was no will left by his uncle, from the explanation offered him by Sarah A. Sawyer and Emma French and the attorney. The attorney said the only way the deed could be delivered was to bring a suit in partition.
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