Starr v. Bartz

• Decision Date: 31 March 1909
• Citation: 117 S.W. 1125,219 Mo. 47
• Parties: STARR et al. v. BARTZ et al.
• Court: Missouri Supreme Court

117 S.W. 1125

219 Mo. 47

STARR et al. v. BARTZ et al.

Supreme Court of Missouri, Division No. 1.

March 31, 1909.

1. PARTITION (§ 9)—VOLUNTARY PARTITION— EFFECT ON TITLE.

The husband of an heir takes no greater title, because joined with her as a joint grantee in a voluntary partition deed, than he would have taken as her husband if he had not been named in the deed at all, since title passes to the heir, not as a purchaser under the deed, but by inheritance.

2. DEEDS (§ 121)—TITLE ACQUIRED—QUITCLAIM DEED.

A purchaser for value under a quitclaim deed acquires whatever title the grantor had at the delivery of the deed.

3. VENDOR AND PURCHASER (§ 224)—QUITCLAIM DEED—PRIORITIES.

A purchaser for value under a quitclaim deed is within the protection of the registry act, and his title is good against a prior unrecorded deed of which he has no actual notice.

4. VENDOR AND PURCHASER (§ 224)—BONA FIDE PURCHASERS—QUITCLAIM DEED.

A purchaser under a quitclaim deed is not a bona fide purchaser, and takes whatever title grantor had to convey, subject to existing equities, except where the registry act protects his title.

5. VENDOR AND PURCHASER (§ 224)—BONA FIDE PURCHASERS—QUITCLAIM DEED—CONSIDERATION.

To fall within the exception that a quitclaim deed is not subject to equities to which the registry act applies, but is protected thereby, value must have been given therefor.

6. LIMITATION OF ACTIONS (§ 80)—RECOVERY OF REAL PROPERTY.

Rev. St. 1899, § 4267 (Ann. St. 1906, p. 2342), providing that if a married woman, entitled to sue to recover real estate, shall die, her heirs may sue within three years after her death, but not thereafter, does not bar an action by heirs where the deed attacked, on its face, in the light of the record title, conveyed nothing, and cast no cloud on their mother's title while she lived, because not recorded till after her death, and she was without knowledge of it, so that there was nothing that would support an action by her.

7. ESTOPPEL (§ 94)—EQUITABLE ESTOPPEL— CONSTRUCTIVE KNOWLEDGE OF FACTS.

Constructive knowledge of what the records showed relative to the title to real estate cannot be made the basis of a charge, in the face of positive proof that there was no actual knowledge, that the persons having notice fraudulently kept silent when they should have spoken and were estopped to thereafter speak.

8. ESTOPPEL (§ 94)—EQUITABLE ESTOPPEL— CONDUCT.

Where heirs knew nothing of a sale of land by a coheir until after it had been made, and there was nothing to show that the purchaser was misled by any conduct of theirs, or that he relied on anything they said or did, but, on the contrary, it appears that he had the records searched and was guided by that examination, such heirs are not estopped to sue for their interest in the land.

Appeal from Circuit Court, Bates County; C. A. Denton, Judge.

Action by Annie R. Starr and another against John F. Bartz and another. Judgment for plaintiffs, and defendants appeal. Affirmed.

Silvers & Silvers, for appellants. Thos. J. Smith, for respondents.

VALLIANT, J.

From the plaintiffs' petition, as set out in the abstract, it is not entirely clear what kind of a suit this was intended to be. Plaintiffs in their brief say the petition is in two counts; but, if so, some of it has been omitted from the abstract, as it is evident some of the judgment or decree has also been omitted, both from the abstract and from the short transcript on which the cause was brought to this court. But the suit was tried on the theory that it was a suit for the partition of land, and as both parties seem to acquiesce in that view of the case, and as the petition is susceptible of that construction we will so consider it.

The land in question lies in Bates county. It, with other lands, was owned in his lifetime by Samuel Grosshart, who was the grandfather of the plaintiffs, Annie and Dennie Starr, and of the defendant Margaret Kisner. Grosshart died intestate in 1862, leaving six children, four sons and two daughters. One of the daughters, Mildred, the wife of Dr. D. L. Lee, died intestate in 1882, leaving her husband, Dr. Lee, and four children, Annie Starr, Dennie Starr, Margaret Kisner, and Joel Lee. At the time of her death, in 1882, Mrs. Lee owned the land involved in this suit in fee simple, and it descended to her four children in equal parts, subject to her husband's right of curtesy, unless the title in fee devolved on him at her death by virtue of a deed to be presently mentioned. The plaintiffs claim title as heirs of their mother, each an undivided one-fourth, conceding to their sister Mrs, Kisner, and to the defendant Bartz, as assignee of their brother Joel, each an undivided one-fourth; but Mrs. Kisner asserts no claim to the 50 acres involved in this suit. The land she claims is in question in another suit (117 S. W. 1129), which is a twin to this one and will be considered next after this one. In 1887, five years after the death of his wife, Dr. Lee executed a deed whereby he essayed to convey (and, if he had title, did convey) to his son Joel the land in suit, and December 31, 1900, Joel conveyed whatever interest he had to defendant Bartz. Dr. Lee died in 1898. If Dr. Lee held the fee-simple title in 1887, when he made the deed to Joel, the plaintiffs have no title to the land; but, if he had then only a life estate by curtesy, the plaintiffs have a right each to one-fourth, unless they have lost their right by operation of the statute of limitations, or are estopped to assert it.

We will now turn back to the source of title. The plaintiffs' mother married Dr. Lee, their father, in 1855, when the common law as to marital rights prevailed. Samuel Grosshart in his lifetime owned about 700 acres of land, the most of it in Cass county; but about 140 acres lay in Bates county. The land in this suit is 50 acres of the Bates county land. Grosshart died in 1862, and descent was then cast on his six children above named. In 1877 these six heirs made an amicable partition of the land they had inherited, setting off to each his or her share, and executed deeds inter sese to carry the partition into effect. Whether there were several deeds, one to each heir, or only one deed, signed by all, is not entirely clear; but a deed or deeds were executed carrying that partition into effect. In that partition the 140 acres of Bates county land was set apart to Mrs. Lee, and a deed to her from her coheirs, or the joint deed, if but one was made, was delivered to her. That deed was not produced in evidence; but the fact that it was made and delivered to her, and that thereupon she and her husband went into possession of the land so allotted to her, and that they lived on it until her death, are facts conceded. In fact, none of the deeds on which the parties seem to rely appear in the record before us, although a brief description of some of them is given, and at the close of the evidence there was an agreement of counsel in a colloquy with the court that thereafter, when the argument should be heard, either party should have the right to produce any deed or deeds he might see fit to produce. Whether either party availed himself of that right does not appear. It would have been more satisfactory to us if we could have seen the deeds, or copies of them; but we will have to take the record as we find it.

Some time after the execution of the partition deed or deeds, and after Dr. Lee and Mrs. Lee had taken possession of the land allotted to her, Dr. Lee went to Cass county, where the other heirs lived, and told them that the deed they had made setting apart the Bates county land to Mrs. Lee was defective in respect of the acknowledgment, and to cure that defect, he asked them to execute another deed, which he had already prepared, and which was a quitclaim deed to himself and his wife for the Bates county land, and on that request they executed the deed; that is, all of them but one, to wit, G. W. Grosshart. That occurred in 1877 or 1878. That deed was not put on record during the lifetime of Mrs. Lee, and there is no evidence that she ever heard of it. It was recorded in 1887, five years after her death. When defendant Bartz bought the land from Joel, he had the title examined, and was advised that there was a defect in it, owing to the fact that one of the heirs—that is, one of the sons of Grosshart—had not joined the other heirs in the execution of the quitclaim deed to Dr. Lee and wife, and he applied to that one, to wit, G. W. Grosshart, to make a quitclaim deed to cure the defect, and it was done. There is a good deal of testimony on the subject of the improvements made by Joel, and afterwards by defendant Bartz, on the land. It appeared in the evidence that a good deal of the improvements claimed were made by Joel during the lifetime of his father; that is, during his father's life estate as tenant by the curtesy. The trial court weighed this testimony pro and con, and, balancing the value of the improvements against the rents and profits, found that the improvements exceeded the rents and profits to the amount of $64.50, and in the decree required that much to be paid to defendant out of the proceeds of that land at the partition sale before division. As the case is now presented to us, there is no complaint as to the correctness of the balance. The decree was that the plaintiffs were entitled to half of the land—that is, one-fourth each—and the defendant the other half; that the land be sold for partition, and the proceeds, after deducting costs and paying defendant the $64.50...