Tyler v. Hall

• Decision Date: 12 October 1891
• Citation: 17 S.W. 319,106 Mo. 313
• Parties: TYLER v. HALL et al.
• Court: Missouri Supreme Court

17 S.W. 319

106 Mo. 313

TYLER v. HALL et al.

Supreme Court of Missouri, Division No. 2.

October 12, 1891.

ESTOPPEL BY DEED — PLEADING — DELIVERY OF DEED — INSTRUCTIONS.

1. In ejectment, plaintiff claimed title by deed from defendant of "all my right, title, and interest which I inherited from my father * * * as one of his three children and heirs at law in and to" the land described, and partition between plaintiff and the heirs under which the land in suit was set off to him in severalty. Defendant claimed under an unrecorded deed from his father to himself for life, remainder to the heirs of his body, with a restriction against alienation of his interest therein. Plaintiff testified that defendant informed him when he sold him his interest that the deed from his father had never been delivered to nor accepted by him. Held, that under the deed from defendant to plaintiff, and the representations so made, defendant was estopped to deny that the deed to plaintiff conveyed such an interest in the land as he would have taken by inheritance had no deed been made by his father to him.

2. The rule that an estoppel must be pleaded in order to be available as a defense does not apply in ejectment when the parties do not set up the title on which they rely.

3. In ejectment it appeared that the deed under which defendant claimed the land from his father, the original source of title, was found by the administrator after the decease of the father in a desk kept by him and under his control, among other papers belonging to him, and was by the administrator delivered to defendant. Held, that the burden of proof of delivery before the father's death was on defendant.

4. An administrator, finding among the effects of intestate after his death a deed executed by the intestate to his son, consulted his attorney in regard thereto, taking the son with him. The administrator paid for the consultation, but required the son to repay him. Held, that the administrator was competent to testify to admissions made by the son in such interview as against the objection of the son that the communication was privileged as between attorney and client, such rule not applying to third persons who were present at a conference between attorney and client, and not media of communication.

5. In ejectment defendant claimed under a deed from his father, the original source of title, which plaintiff claimed had never been delivered. It appeared at the trial that after the death of the father such deed was found by the administrator in a desk among the papers of deceased, in an envelope marked as containing defendant's deeds, and that the members of the family of deceased had access to such desk, and that a few months prior to his death he put defendant in possession of the land. There was evidence of declarations of deceased to the effect that he had given the land to defendant, and also evidence that he had handed the deed to defendant, telling him to have it recorded. The evidence to prove want of delivery consisted chiefly of testimony of witnesses of admissions by defendant that the deed had not been delivered. Held, that it was not error to refuse a peremptory instruction to find for defendant on such issue.

6. On an issue as to the delivery of a deed to defendant from his father, which was found among the father's papers on his death, an instruction that, if the father, during his life-time, kept the deed in a place to which the defendant had access, "yet that fact of itself was not sufficient to constitute delivery. The intention to deliver must be proved by some word or act of the grantor," — is not erroneous as a comment on the evidence.

7. A few months before the death of the father he had put defendant in possession of the land. The court charged that if deceased did so for the sole purpose of permitting him to enjoy the rents and profits, and not in pursuance of a previous gift, then such possession was not evidence of the delivery of the deed. Held, not erroneous for want of any evidence that defendant was placed in possession for the sole purpose of enjoying the rents and profits, as it might be inferred from the relation of the parties and the declarations of the father that he wanted the defendant to live on the place, and he could do as he pleased about cutting timber thereon.

Appeal from circuit court, Henry county, D. A. DE ARMOND, Judge.

Action of ejectment by James K. Tyler against George L. Hall and others. Verdict and judgment for plaintiff. Defendants appeal. Affirmed.

R. M. Robertson, M. A. Fyke, and O. L. Houts, for appellants. S. P. Sparks and W. W. Wood, for respondent.

MACFARLANE, J.

The action is ejectment to recover a tract of land in Johnson county. The answer admitted the possession, and denied all other allegations. Sylvester Hall, deceased, was the common source of title. Previous to his death he owned the tract of land in controversy, and died seised of large tracts of land in Johnson and Pettis counties, leaving his widow and three children, George L. Hall being one of them. The widow took a child's part of the estate. Plaintiff read in evidence a deed from defendant Hall to himself, dated the 8th day of August, 1885, describing therein about 1,600 acres of land, and including the land in controversy. This was inform a deed of general warranty, and described the interest conveyed as follows: "The following described tracts or parcels of land, situate in the county of Johnson and state of Missouri, to-wit: All my present right, title, and interest which I inherited from my father, Sylvester Hall, late of Pettis county, Mo., as one of his three children and heirs at law in and to," following with a description of the lands conveyed. After the specific description, the following: "Also all other real estate not hereinbefore described specifically, whether in said county of Johnson or in any other county in the state of Missouri, which I inherited from my said father, Sylvester Hall." This deed was duly acknowledged and recorded. Plaintiff then put in evidence the record of a partition suit between plaintiff and the heirs of Sylvester Hall, by which the land in suit was set off in severalty to himself. Defendant, in support of his title, offered an unrecorded deed from Sylvester Hall, dated July 30, 1881, conveying the land in suit to him for life, with remainder to the heirs of his body. This deed contained the following provisions: "But under this conveyance, etc., said Geo. L. Hall is to have no power to sell or convey his life-estate in said lands, or any part thereof; and if the said George L. Hall shall at any time hereafter convey, or attempt to convey, his life-interest, or any part thereof, in the lands hereby conveyed, or any portion of the same, then this deed shall become immediately void and of no effect." Under this deed defendant claimed title and the right to the possession of the whole of the land in suit.

1. Plaintiff testified — and his testimony was undisputed — that defendant informed him when he sold him his interest in the estate inherited from his father that this deed from his father had never been delivered to or accepted by him. The court held that, under the deed from defendant to plaintiff, and the representations so made, defendant was estopped to deny that the deed to plaintiff conveyed such an interest in the land as he would have taken by inheritance, had no deed been made by his father to him. The ruling of the court was undoubtedly correct. The deed from defendant to plaintiff not only undertook to convey all the interest in the estate inherited from his father, but the recitals therein plainly declared that the land in controversy was a part of the estate so inherited. The rule is that a recital in a deed of a fact will, in general, conclude the grantor and his privies. Dickson v. Anderson, 9 Mo. 156; Clamorgan v. Greene, 32 Mo. 285; Bailey v. Trustees, 12 Mo. 176. "In order to determine whether a recital is evidence against a party in a given case we have only to ascertain whether an acknowledgment or confession of the person who executed the deed would be competent." Joeckel v. Easton, 11 Mo. 124.

2. It is insisted that plaintiff cannot avail himself of the estoppel in this case for the reason that it was not pleaded. It is true, generally, that an estoppel must be pleaded in order to be available as a defense, but the rule does not apply to ejectment suits in which the parties do not set up the title on which they rely. The pleadings in this class of cases are not required to give notice to the opposite party of the title upon which reliance is placed. Plaintiff was not informed by the pleadings that defendant would rely upon a deed from his father, and had no opportunity to plead...