Smith v. Smith

• Decision Date: 05 March 1907
• Parties: ELIZABETH A. SMITH v. JAMES W. SMITH et al., Appellants
• Court: Missouri Supreme Court

100 S.W. 579

201 Mo. 533

ELIZABETH A. SMITH v. JAMES W. SMITH et al., Appellants

Supreme Court of Missouri, Second Division

March 5, 1907

Appeal from Mississippi Circuit Court. -- Hon. Henry C. Riley Judge.

Reversed.

Russell & Deal for appellants.

(1) Plaintiff's petition does not state a cause of action First, for the reason that it states no equity, the allegations of the mistake, accident and oversight being too indefinite. Bliss, Code Pleading (2 Ed.), secs. 211, 212. Second, for the reason that plaintiff's right of action if any ever existed, has long since been barred by the Statute of Limitations; the petition as well as the evidence shows that the deed was made and delivered in 1866, nearly thirty-eight years before this suit was filed. Burdett v. May, 100 Mo. 13. Even if the plaintiff was a married woman, twenty-four years constitutes a bar to her right to sue. R. S. 1899, sec. 4265; Reed v. Painter, 145 Mo. 341. As she had no children, Mr. Smith never had a right of possession as tenant by curtesy initiate. (2) The testimony of Mrs. Goddard and J. H. Moore was incompetent and inadmissible because they were both parties grantor to the deed sought to be reformed, made by them to James Smith, who is now dead. They cannot now contradict the deed they made forty years ago in 1866 and take from James Smith's heirs the property they conveyed him then, he not being here to contradict their statements. Messemer v. McCray, 113 Mo. 382; Bank v. Slattery, 166 Mo. 620; State ex rel. v. Thompson, 81 Mo.App. 549; Patton v. Fox, 169 Mo. 97; Edwards v. Warner, 84 Mo.App. 200. (3) Courts of equity view with disfavor suits brought long after transactions litigated have occurred and after death has sealed the lips of those familiar with occurrences. State ex rel. v. West, 68 Mo. 229; Burdett v. May, 100 Mo. 18. (4) If the testimony of Moore and Goddard is excluded, plaintiff has no proof at all except witnesses Lee and Vowels to loose remarks in ordinary conversations, to which equity pays little attention. Cornet v. Bertelmann, 61 Mo. 118; Forester v. Scoville, 51 Mo. 268. (5) The deed itself is to be taken in our behalf with all the presumptions it carries with it of its correctness, and before the court should decree a change of the deed which is the solemn act of the parties, the evidence must be plain and conclusive, both to establish a mistake and a trust. Bunse v. Agee, 47 Mo. 270; Modrell v. Riddle, 82 Mo. 31. (6) Under the law in force when plaintiff was married and when her father died and when the deed in controversy was made, her personal property and the proceeds of her lands became the absolute property of her husband. Croft v. Bolton, 31 Mo. 355; Hart v. Leet, 104 Mo. 316; Leet v. Bank, 141 Mo. 574; Bank v. Fry, 168 Mo. 492. (7) If the property which Mrs. Smith inherited from her father's estate was reduced to Mr. Smith's possession and the proceeds used in buying any or all of the land, such shares so bought under the law then in force became the absolute property of Mr. Smith. Rogers v. Bank, 69 Mo. 562; Tillman v. Tillman, 50 Mo. 40; Kidwell v. Kirkpatrick, 70 Mo. 214. So that the interests which were conveyed to James Smith by the administrator of Ben J. Moore and his widow unquestionably belong to the estate of said Smith. (8) Plaintiff has not made out such a case as will warrant the court in reforming this deed, because the rule is that to prove a trust or reform a deed the testimony must be so clear, strong and unequivocal as to banish any reasonable doubt from the mind of the chancellor respecting the existence of such trust. Burdett v. May, 100 Mo. 16; Forester v. Scoville, 51 Mo. 268.

Boone & Lee, with O'Bryan, for defendant.

(1) That the petition states a cause of action is too plain to discuss. The statement that by accident or mistake the trust clause was omitted, is a statement of fact, not a conclusion of law. Mistake of law or fact on the part of the maker of an instrument will be corrected by a court of equity. Ellsworth v. Quade, 28 Mo.App. 421; 3 Wait, Actions and Defenses, p. 164; Leitensdorfer v. Delphy, 15 Mo. 160. In the case at bar, the parties all thought that they were conveying the land in trust; the writer of the deed himself thought so, and testified to that effect. (2) No cause of action accrued in this case until after the death of Jas. Smith in 1902. Under the law he had the exclusive right to the possession of his wife's real estate. He never asserted title to it under the deed in question. He always considered it as her property and neither he nor his wife knew any better during his life, and there was no assault on her title until an adverse claim was made by the heirs of her husband. This suit was brought to the April term, 1903; therefore, respondent is not barred by the statute of limitation, neither does the twenty-four-year Statute of Limitation bar her. Bradley v. Railroad, 91 Mo. 497; Graham v. Ketchum, 192 Mo. 20; Dyer v. Witler, 89 Mo. 84; Boynton v. Miller, 144 Mo. 681. (3) Section 4652, Revised Statutes 1899, removes the common law disability of parties in interest to testify, and excepts when one of the parties is dead, insane, etc. Neither Moore nor Goddard are parties or in any manner interested in the results of this law suit; nor were they the agents of Mrs. Smith. The question at issue here is not the contract between them and James Smith, but the implied contract between Mrs. Smith and James, arising from the fact that he wrongfully, ignorantly or by mistake had the deed made to himself, and not to her; or failed to have a trust clause inserted in the deed. J. H. Moore, who wrote the deed, was as much his agent as he was of Mrs. Smith. Ess v. Griffith, 139 Mo. 329. The admissions of the party holding legal title are admissible to establish a resulting trust. Rice v. Shipley, 159 Mo. 403; Price v. Kane, 112 Mo. 412. The Supreme Court will not set aside the finding of the chancellor unless manifestly against the weight of evidence. Hartly v. Hartly, 143 Mo. 216; Roberts v. Stone, 91 Mo.App. 425. The facts in this case warranted the finding and judgment of the trial court.

OPINION

BURGESS, J.

In 1857 Charles Moore died intestate, owning the land involved in this litigation and other land and personal property. He left surviving him seven children, namely, Eliza J. Goddard, Elizabeth A. Smith, this plaintiff, Nancy Parrot and Susan A. Swank, daughters, and Charles C. Moore, Joseph H. Moore and Benjamin J. Moore, sons, his only heirs-at-law. In 1864 Benj. J. Moore died, and Joseph C. Moore was duly appointed his administrator, and qualified as such.

Prior to the 6th day of April, 1866, the plaintiff, Elizabeth A. Smith, was united in marriage to James Smith, and remained his wife until his death in 1902. Said James Smith was the father of the defendants, James W. Smith, Silas S. Smith and Elizabeth Bridwell, and the grandfather of Henry E. Sherman, who is the only heir of Sarah, deceased, a daughter of James Smith, also the grandfather of Ida Ross, wife of Emil E. Ross, and Mattie Deal, wife of E. J. Deal, the said Ida Ross and Mattie Deal being the only surviving heirs of Ellen, a daughter of James Smith.

The petition alleges:

"That on the 6th of April, 1866, the then surviving children of Charles Moore, tenants in common, owning the real estate left by said Charles Moore, by mutual consent and agreement, made division and partition of the lands so derived and so owned as tenants in common, setting apart to each lands of the estimated value of fourteen hundred dollars; that thereunder, there was set apart to Elizabeth Smith the following parcels of land in Mississippi county, Missouri, namely: The southeast quarter of the southwest quarter of section two and the north half of the northwest quarter of section eleven, township twenty-six, range sixteen, also the southwest quarter of section fifteen, township 26, range 17, in Mississippi county, Missouri, and there was also set aside to each of the other heirs and children, lands of an equal value and, on said dates, deeds were executed, signed by all the heirs, as grantors to each of said heirs as grantees, giving effect to, carrying out and conveying the lands as per agreement, and on said 6th April, 1866, to carry out said agreement of partition, Joseph H. Moore and wife, Anne; Nancy M. Parrot and husband, Beverly; Charles C. Moore and wife, Joan; Susan A. Swank and husband, A.V., and Ellen J. Goddard, by their deed of that date, undertook to convey to James Smith the above-described lands in trust for his wife Elizabeth, to whom they then belonged, but by mistake, accident and oversight the clause necessary to create the trust was unintentionally omitted in said deed, though said deed was received and accepted by said James Smith with such understanding and intent. That while the sum of fourteen hundred dollars is recited in said deed as a consideration for said conveyance of land, yet in truth and fact, no money was passed, given or received therefor, but the sole consideration upon which said conveyance of lands was based was the agreement of division and the conveyance of other lands of like and equal value in which the said Elizabeth had a one-seventh interest, and that said lands and said conveyance were accepted by said James Smith as a trustee for the use and benefit of his wife, Elizabeth, who in after life so treated it. She further states that during the life of said Smith, he and the plaintiff sold and conveyed the lands in section 2 and section 11, and that the lands in section 15 is all that is left of said trust property.

"She further states that in 1868, Joseph C. Moore, administrator of B. J. Moore, conveyed the one-seventh interest of said land held as tenant in common by B. J. Moore to...