Stevens v. Fitzpatrick

• Decision Date: 31 March 1909
• Citation: Stevens v. Fitzpatrick, 218 Mo. 708, 118 S.W. 51 (Mo. 1909)
• Parties: ELLEN S. STEVENS et al. v. G. W. FITZPATRICK et al.; FANNIE D. STEVENS and O. H. STEVENS, Appellants
• Court: Missouri Supreme Court

118 S.W. 51

218 Mo. 708

ELLEN S. STEVENS et al. v. G. W. FITZPATRICK et al.; FANNIE D. STEVENS and O. H. STEVENS, Appellants

Supreme Court of Missouri, First Division

March 31, 1909

Appeal from Clay Circuit Court. -- Hon. J. W. Alexander, Judge.

Affirmed.

Frank Titus for appellants.

(1) The petition of plaintiffs herein does not contain allegations of fact sufficient to constitute a cause of action, or to warrant the decree rendered thereon in this cause. The petition fails to state the facts constituting the alleged trust or operating to cause the deed to William Stevens from Henry Smith to be a trust, the alleged purchaser E. A Stevens being of full age and of sound mind, a lawyer by profession, a man of wealth and the owner of many lands. That no date of the execution of such alleged deed is named, the allegation being "about the year 1889." No allegation is made that William A. Stevens personally delivered a deed to the lands in question or that the same was delivered by anyone under his authority to E. A. Stevens. Nor is any reason whatever given for the failure to record such alleged deed. No facts showing how said deed was lost or when it was lost, or by whom it was lost, nor any consideration therefor, are stated; nor is the nature of the estate stated or a description of the land which said alleged deed may be supposed to have conveyed; nor does the petition state any facts whatever, constituting under the law of this State an acknowledgment of such alleged deed which is required under Sec. 906, R. S. 1899, to constitute a valid deed as against appellants. All these defects in the petition were called to the attention of the court by due objection to testimony for plaintiffs. No allegation whatever of fraud is made in the petition, and notwithstanding the fact that under the law the alleged trust is required to be evidenced by writing, this fact is ignored by the petition. This petition is insufficient to uphold either the decree, or the testimony admitted at hearing. Nichols v. Nichols, 134 Mo 194; Elyton Land Co. v. Denny, 108 Ala. 553; Pomeroy on Remedies (2 Ed.), sec. 517, 526; Kelsey v. Hammer, 18 Conn. 311; Torrent Fire Engine Co. v. Mobile, 101 Ala. 559; Rogers v. Ramay, 137 Mo. 598; McDonald v. Jackson, 56 Iowa 643; Dexter v. McDonald, 196 Mo. 373; Owen v. Crum, 20 Mo.App. 121; Dexter v. McDonald, 196 Mo. 373. (2) The final decree in this cause is erroneous. (a) Unless the facts relied on by the plaintiffs are both pleaded and proved by them, clearly establish a "resulting" trust, the decree should not be sustained herein. Wacker v. Wacker, 147 Mo. 246; Heil v. Heil, 184 Mo. 665; Curd v. Brown, 148 Mo. 92; McKee v. Higbee, 180 Mo. 263; Reed v. Sperry, 193 Mo. 167; Couch v. Harp, 201 Mo. 457; Smith v. Smith, 201 Mo. 533; Griffin v. Miller, 188 Mo. 327; Pitts v. Weakley, 155 Mo. 136; King v. Isley, 116 Mo. 155; Nevions v. Nevions, 101 N.Y.S. 1091; Dexter v. McDonald, 196 Mo. 373; Bunel v. Nestor, 203 Mo. 429; Crowley v. Crowley, 110 S.W. 1100; 17 Cyc. 774. (b) Under the pleadings and the law governing evidence the decree is illegal. (1) A vital charge in the petition is that "the plaintiff Ellen S. Stevens is the owner and in possession of the land in question, on August 3, 1904, the day of filing this suit." The answer of these defendants put this fact in issue. McFarland R. E. Co. v. Gerardi Co., 202 Mo. 604; Dunlap v. Kelley, 105 Mo.App. 157; Gustin v. Ins. Co., 90 Mo.App. 376; Weil v. Poston, 77 Mo. 284. (2) There is no sufficient proof in this case of the existence of the deed mentioned in the petition as from William Stevens and wife to his son, Edward, nor of the loss of any such deed. This witness, like the other witness who testified on the point, is unable to prove any of the material facts constituting a deed, such as: (1) That the signatures on the paper were genuine signatures of the alleged makers; (2) the consideration therefor; (3) that an acknowledgment had been made or taken thereto, as required by Sec. 906, R. S. 1899, making it necessary to the validity of deeds conveying lands in Missouri that they shall be acknowledged or proved or certified in the manner prescribed by the statute; (4) any facts constituting in law a delivery of such instrument as a deed; (5) that the contents of such paper on the face thereof purported to pass the title to the land in question. The proof required to enable a court to decree an alleged unrecorded lost deed as established and adjudge it an existing title to land must be sufficiently clear to redraft the instrument as to all the essential facts and details of the conveyance, the consideration, the date, the execution and a delivery by its makers, with the statutory acknowledgment by the grantors. Taylor v. Williams, 45 Mo. 84; McNear v. Williamson, 166 Mo. 367; Hall v. Gillemore, 138 Mo. 642; McKee v. Higbee, 180 Mo. 297; Stephan v. Metzer, 95 Mo.App. 622; Hendricks v. Whitecotton, 60 Mo.App. 671; Tyler v. Hall, 106 Mo. 322; 17 Cyc. 778 (f); 3 Wigmore on Evidence, sec. 2105; Edwards v. Noyes, 65 N.Y. 125; Elyton Land Co. v. Denny, 108 Ala. 553; Loftin v. Loftin, 98 N.C. 94; Neely v. Carter, 96 Ga. 197; Holmes v. Deppert, 122 Mich. 280; Gorman v. Gorman, 98 Ill. 361; Burk v. Pence, 206 Mo. 339. (3) The act of Edward A. Stevens in directing the deed from H. Smith to the land in question to be made to his father, under the circumstances disclosed herein, denotes a gift to his father rather than the creation of a trusteeship. Hall v. Hall, 107 Mo. 109; Hatcher v. Hatcher, 139 Mo. 614; Curd v. Brown, 148 Mo. 82; Judy v. Louderman, 48 Ohio St. 573. (4) The laches of plaintiffs, and of Edward A. Stevens under whom they claim, as well as the law, both statutory and judicial, forbid a recovery by plaintiffs in this case. Sec. 4281, R. S. 1899; Taylor v. Blair, 14 Mo. 437; Stevenson v. Saline Co., 65 Mo. 425; Wells v. Perry, 62 Mo. 573; Hoester v. Saummelman, 101 Mo. 619; Whitney v. Fox, 166 U.S. 637; Hammond v. Hopkins, 143 U.S. 273; Penn. Mutual Co. v. Austin, 168 U.S. 685. (5) It was error in the trial court to deny the motion of appellants requesting the court to require the plaintiffs to elect upon which of the causes of action in their petition they would proceed in this suit; and the denial and overruling appellants' motion to strike out parts of the answer of the North Kansas City Development Company was also material error on the part of the court below. Sec. 593, R. S. 1899, forbids the uniting in the same petition of several causes of action unless all said separate causes of action arose out of the same transaction or transactions connected with the same subject of action. Kennerly v. Summerville, 64 Mo.App. 75; Clancy v. Railroad, 192 Mo. 640; Otis v. Bank, 35 Mo. 128; State to use v. Davis, 35 Mo. 406; Ederlin v. Judge, 36 Mo. 350; Bank v. Bayliss, 41 Mo. 274; Southworth Co. v. Lamb, 82 Mo. 242; Christal v. Craig, 80 Mo. 367. (6) The cross-bill in partition of appellant, Fannie D. Stevens, was erroneously disregarded in the trial court. Fannie D. Stevens being an innocent purchaser for value of the said real estate prior to the institution of this suit, obtained a valid title to the interest of Oscar H. Stevens therein as heir to William Stevens through the undisputed record title in fee simple of William Stevens as owner of such land at time of his death. These facts were not denied either by pleadings or proof by the plaintiffs in the original suit, defendants in the cross-bill, and under the law the decree refusing partition is illegal. Callaway v. Fash, 50 Mo. 420; Digman v. McCollum, 47 Mo. 372; Maupin v. Emmons, 47 Mo. 304; Sell v. McAnaw, 138 Mo. 272; Budde v. Rebenack, 137 Mo. 179; Barrett v. Baker, 136 Mo. 518; Gunn v. Thurston, 130 Mo. 339. (7) The plaintiffs herein are not the real parties in interest, and were not warranted in instituting this suit. Sec. 540, R. S. 1899; Snyder v. Free, 114 Mo. 367; Young v. Schofield, 132 Mo. 661; Boles v. Bennington, 136 Mo. 529; Dezell v. Ins. Co., 176 Mo. 279.

Scarritt, Scarritt & Jones for respondents.

(1) The petition in this case is in two counts. The first count is under section 650, which authorizes any party claiming interest in land to have the same adjudged and decreed by the circuit court. The second count prays the court upon the facts alleged to enter a decree restoring the lost deed and divesting any title defendants may have out of them, and investing it in plaintiffs. The only suggestion made by the defendants' counsel upon the argument at the trial was that the court had no authority in a case of this kind to enter its decree restoring the lost deed and divesting the title out of defendants and investing it in plaintiffs. This proposition has been clearly and abundantly decided by our Supreme Court. Wynn v. Cory, 43 Mo. 304; Wright's Heirs v. Christy's Heirs, 39 Mo. 125; Hord v. Baugh, 46 Am. Dec. 91. (2) The object of the preliminary inquiry as to the establishment of a lost instrument is simply to establish a reasonable presumption of such loss. Hume v. Hopkins, 140 Mo. 72; Kleiman v. Geiselman, 114 Mo. 437; State ex rel. v. Goodhue, 74 Mo.App. 165; Henry v. Diviney, 101 Mo. 378.

OPINION

VALLIANT, J.

This suit involves the title to about 17 acres of land in Clay county, just across the river from Kansas City, being the east half of the southeast quarter of the northeast quarter section 23, township 50, range 33. According to the petition the land was purchased in 1881 by Edward A. Stevens and paid for by him, but at his request and for his convenience the title was taken in the name of his father, William Stevens. William Stevens died in 1896, Edward died in 1902. The plaintiff, Ellen, is the widow of Edward, the executrix of his will and his devisee; the other plaintiffs are his...