Shaffer v. Detie

Decision Date22 November 1905
Citation90 S.W. 131,191 Mo. 377
PartiesSHAFFER, Appellant, v. DETIE et al
CourtMissouri Supreme Court

Appeal from New Madrid Circuit Court. -- Hon. H. C. Riley, Judge.

Affirmed.

Scobey & Walton for appellant.

(1) The defendants, on cross-examination of the plaintiff, sought to attack plaintiff's title, and a conveyance, by showing that Newton C. Morehead was a minor at the time he executed a certain deed to Scobey, in plaintiff's title. The plaintiff objected to the question of the minority of Newton C. Morehead, as the minority of one of the grantors to plaintiff's title could not be any defense to the defendants, who are third parties to the conveyance. The court overruled the objection, to which plaintiff duly excepted, and the ruling of the court in so doing is assigned as one of the errors of the trial court. (a) The deed of the minor, Morehead, was only voidable and not void. Tiedeman on Real Property, sec. 792; Clark on Contracts, sec. 112; Lawson on Contracts, sec. 130; Ridgway v. Hurbert, 150 Mo 606; Shipley v. Bunn, 125 Mo. 445; Craig v. Van Bebber, 100 Mo. 584; Singer Mfg. Co. v. Lamb, 81 Mo. 221; Huth v. Marine Ry. & Dock Co., 58 Mo 202; Baker v. Kennett, 5 Mo. 82; Kearney v Vaughn, 50 Mo. 284; Furgurson v. Bell's Admr., 18 Mo. 347; Downing v. Stone, 47 Mo.App. 144. (b) One who is not a party to a sale can not attack it on account of the minority of the vendor. Hill v. Taylor, 125 Mo. 331; Griffith v. Schwenderman, 27 Mo. 412; Ward v. Steam Boat Little Red, 8 Mo. 358. (2) The court admitted in evidence, over the objection of plaintiff, a deed from J. C. Morehead and wife to John McLure, when J. C. Morehead had no title in and to said land and consequently he could not convey any title to the said premises, and John McLure acquired no title to the land by virtue of said deed of conveyance, and therefore said deed should have been excluded. (a) Because J. C. Morehead took no legal title from Stephen W. Morehead in the pretended sale. Sale of real estate, in this State, must be made by deed and not by parol. Tiedeman on Real Prop., secs. 791, 799, 800; Rodgers v. Vanderburg, 168 Mo. 430; Alt v. Fullerton, 151 Mo. 598; Robinson v. Claggett, 149 Mo. 153; Turner v. Williams, 76 Mo. 617; Picket v. Jones, 63 Mo. 195; Chapman v. Templeton, 53 Mo. 463. (b) J. C. Morehead did not acquire any legal title to the land in controversy. Tiedeman on Real Property, sec. 799; Robinson v. Claggett, supra; Turner v. Williams, supra; Chapman v. Templeton, supra; McKinney v. Settles, 31 Mo. 541. (c) Plaintiff had no notice of the pretended unrecorded sale from Stephen W. to J. C. Morehead, and it was a nullity as against the plaintiff. Ebersole v. Rankin, 105 Mo. 488.

Oliver & Oliver for respondents.

(1) The appellant here holds through a pretended deed executed by Newton C. Morehead -- a boy of fifteen years -- to Mr. Scobey, for a consideration of thirty dollars. Mr. Scobey on the same day pretends to sell the same land to this appellant for a consideration of one hundred and fifty dollars. Such a showing renders the contract of the minor void because manifestly prejudicial to the infant's interest. Where this is so, the contract is not voidable but void. Lawson on Contracts, sec. 130. (2) (a) Respondents have, however, not only a perfect defense but they have a perfect title to the land in question. They hold it by the Statute of Limitations. They also hold it by direct purchase. Bank v. Evans, 51 Mo. 335; Shipley v. Conway, 52 Mo. 559; Brown v. Railroad, 101 Mo. 448; Allen v. Mansfield, 108 Mo. 343. (b) It is true respondents have not produced the deed from Stephen W. Morehead to J. C. Morehead, but we have produced Mr. Pikey, who was the brother-in-law of the grantor and the son-in-law of the grantee, who swears he was present when the sale was made, knows that the consideration was paid, knows that the grantee was put into possession of the place, knows that the grantee accepted the consideration in satisfaction of the sale, and that a year or so afterwards this witness rented the same land from J. C. Morehead the grantee. Where this state of facts is shown this court has said that the sale was consummated notwithstanding no deed passed from the grantor to the grantee. Ridgeway v. Holladay, 59 Mo. 452; Neef v. Suly, 49 Mo. 209. (3) The Statute of Limitations having commenced to run against Stephen W. Morehead in 1876 or 1877 when J. C Morehead went into the possession of this land, it would continue to run against the said Stephen and his heirs after his death. Rogers v. Brown, 61 Mo. 187.

OPINION

LAMM, J.

Ejectment for the southeast quarter of the southwest quarter of section 17, township 21, range 13 in New Madrid county. Ouster laid as of January 1, 1901. Petition in common form. Detie is alleged to be in possession of the locus as tenant of his co-defendants, the DeLisles.

By joint answer, Detie's possession as tenant of the DeLisles is admitted, and an adverse, visible and continuous possession under claim of right and color of title, since 1878, is pleaded in the defendants and their grantors, thereby invoking the Statute of Limitations as a defense.

By way of matter in pais, constituting an equitable defense and upon which affirmative equitable relief is prayed by defendants, it is further alleged in substance that plaintiff's claim is based on a deed from Newton Morehead -- a minor son of Stephen Morehead, deceased. That Stephen Morehead was a son of J. C. Morehead. That Stephen sold said land to his father in the seventies and received the full purchase price from him and then and there put his said father in possession and that by a chain of title, specifically pleaded in the answer, the ownership and possession of said premises had come down from said J. C. Morehead through mesne conveyances to the DeLisles. That the deed from Stephen to his father at the time the sale was consummated was either made and lost before record, or by neglect was not made at all, and relief is prayed that the title of Stephen Morehead be decreed to have passed by said sale from Stephen to J. C. Morehead and for such further relief as to the court may seem right and equitable. The answer also denied all the allegations of the petition not admitted.

Issue was joined by reply to the new matter in the answer and the cause heard by the court, neither party requesting a jury on any issue.

Plaintiff asked and was refused certain instructions and saved his exceptions. Plaintiff was given certain instructions and defendants asked none.

By its decree the court found the facts specifically as alleged in the answer and on March 22, 1902, entered a decree in favor of defendants and granted the affirmative relief prayed by them. Two days after this decree was entered, to-wit, on March 24th, plaintiff filed a written request for a finding of facts which request was complied with and a finding made and filed which, in some particulars, is challenged here by plaintiff.

After an unavailing motion for a new trial, plaintiff perfected his appeal and the cause is now pending in this court on a complete manuscript transcript and a meager abstract of record furnished by appellant, which in set terms points us to the manuscript transcript for some of the record facts deemed important by him. Appellant's abstract is supplemented by another furnished by respondents, equally scanty, and which also refers us to the same transcript for certain record facts. Of this condition of things, it may be said that while this court has been, of set purpose, conservative and bland in its interpretation and application of its printed rules, yet it is an unbending rule, the underlying wisdom of which cannot be gainsaid, that even in cases where a complete manuscript transcript is filed here, a printed, paged and indexed abstract must also be furnished us (and served on the respondent) setting "forth so much of the record as is necessary to a full understanding of all the questions presented to this court for decision." [Rule 13.] The convenience of litigants and of the members of this court in the dispatch of business requires this to be done, and we have uniformly refused to go behind unchallenged abstracts and to manuscript transcripts to hunt, as with a lighted candle in hand, to see if peradventure we may spy out the facts and issues pressed upon us for consideration. Such seems the moral to be drawn (and needing heed by the profession) from the frequent dismissal of causes for failure to obey this rule. [Manuel v. Railroad, 186 Mo. 479, 85 S.W. 551; Whitehead v. Railroad, 176 Mo. 475; Ramsey v. Shannon, 140 Mo. 281, 41 S.W. 732; Halstead v. Stone, 147 Mo. 649, 49 S.W. 850; Ely v. Coontz, 167 Mo. 371, 67 S.W. 299.] It is true in this case respondents, as was their privilege, seem willing to forego their right to such abstract, but manifestly respondents, however suave, are not at liberty to forego or waive the right of this court to such abstract, and we will presume the printed abstracts import not only verity but contain all the verity needful to consider.

Attending, then, alone to the printed abstracts, the case made on the facts is as follows:

Stephen Morehead is conceded to be the common source of title and therefore no attention need be given to prior conveyances.

On behalf of appellant it was shown that Stephen Morehead died in 1887, divorced from his wife, also now dead. That they left surviving them three children, of whom an only son, Newton Morehead, is alive. Having made a prima facie showing of descent cast upon Newton Morehead appellant next produced in evidence two deeds, one from Newton Morehead to Scobey dated August 25th, 1900, consideration thirty dollars, and one of the same date from said Scobey to appellant,...

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