Wheelock v. Overshiner
| Decision Date | 23 May 1892 |
| Parties | Wheelock v. Overshiner et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Polk Circuit Court. -- Hon. W. I. Wallace, Judge.
Reversed and remanded.
A. A Underwood for appellants.
(1) The evidence shows a continuous, open, notorious possession under claim of title in Wheelock, and those under whom he claims as to the east half of southeast quarter, less fourteen acres, from the death of Young M. Pitts in May, 1871, until November, 1888, and of the northwest quarter of the southeast quarter from 1872 -- at least from before the marriage of Eleanor to Nathaniel Brittain -- and possession of the southwest quarter of southeast quarter from July 7, 1871, to November, 1888. Hence, at the time of commencing her action Mrs. Brittain was barred by the statute of limitations, and Wheelock's possession had ripened into an affirmative title. Ekey v. Inge, 87 Mo. 493; Ridgeway v. Holliday, 59 Mo. 444. (2) When the statute of limitations begins to run no subsequent disability will stop it. Cunningham v. Snow, 82 Mo. 587. (3) If a party claims a disability the burden of proving it rests on the party so claiming, as well as the duration of it. Suit must be brought within three years after removal of disability. Gray v. Yates, 67 Mo. 601. (4) Where a person has been absent seven years without being heard from or of, the presumption is that he is dead, and the death may be presumed from facts and circumstances prior to that time; but after seven years' absence, at most, a right of action will accrue, and the disability of coverture be removed. Hancock v. Ins. Co., 62 Mo. 26; Lancaster, Adm'r, v. Ins. Co., 62 Mo. 121; Kauz v. Red Men, 13 Mo.App. 341. (5) A woman entitled to a homestead under the law of 1871 was entitled to the fee, and her right vested immediately upon the death of her husband. If ousted of the whole or any part, her right of action would then accrue. Skouten v. Wood, 57 Mo. 380; Freund v. McCall, 73 Mo. 343; Rogers v. Marsh, 73 Mo. 64. (6) If a woman be entitled to dower and homestead in the same lands and obtains an assignment of dower and conveys her interest to another, she thereby waives and relinquishes her homestead. Bates v. Bates, 97, Mass. 392; 1 American Law of Administration, sec. 97, p. 205, note 6. Under the evidence in this case the widow was clearly estopped. It is only in those cases in which the title to the lands of which the husband died seized and possessed has not been changed, and the rights of intervening third parties have not accrued, that there is no estoppel. Wright v. Dunning, 46 Ill. 271; Davis' Appeal, 34 Pa. St. 256; Baskins' Appeal, 38 Pa. St. 65; Gragg v. Gragg, 65 Mo. 343; Seek v. Haynes, 68 Mo. 13. In this case there is not any evidence that Mrs. Brittain had no knowledge of the fact that she was entitled to homestead -- an important element in 68 Mo. 13. (7) Minor children cannot abandon homestead, but widow may, even under law previous to 1875. A widow cannot have two homesteads, and the sale of one, or removal therefrom, and the acquisition of another, constitutes an abandonment. Kaes v. Gross, 92 Mo. 647; Thompson on Homesteads, sec. 286; Wright v. Dunning, 46 Ill. 271. (8) The judgment rendered in the Hickory circuit court was not binding on appellants, they being neither parties nor privies, and without any notice such as required by law.
T. G. Rechow and J. B. Upton for respondent.
(1) The action of covenant is an action at law, though, when against devisees, as in this case, the relief may be in its nature equitable, as the liability is only to the extent of the property devised. R. S. 1889, sec. 8839. (2) This, however, does not make it an equitable action. Walker v. Deaver, 79 Mo. 664; Irvine v. Leyh, 102 Mo. 206; Foote v. Clark, 102 Mo. 406. (3) This court will not review the evidence in actions at law when there is substantial evidence to sustain the findings. Handlan v. McManus, 100 Mo. 124, 137; Kolbaum v. Roepke, 27 Mo. 161; Altum v. Arnold, 27 Mo. 264; Easley v. Elliott, 43 Mo. 290; Harrington v. Minor, 80 Mo. 270; Cunningham v. Snow, 82 Mo. 593. (4) Even in equity cases this court will defer to the chancellor. Springer v. Kleinsorge, 83 Mo. 159; Mathias v. O'Neil, 94 Mo. 530; Erskine v. Lowenstein, 82 Mo. 309; Snell v. Harrison, 83 Mo. 658; Sharp v. McPike, 62 Mo. 307; Rawlins v. Rawlins, 102 Mo. 567. (5) The only exception saved by appellants is as to the admissibility of the judgment of ouster in the circuit court of Hickory county against John Bain and James C. Wheelock, and this was clearly admissible for the purpose of showing the ouster and the dispossession of Wheelock and his tenant. 2 Black on Judgments, sec. 571; 2 Wait's Actions & Defenses, p. 392; Rawle on Covenants for Title [5 Ed.] secs. 123-4; Fields v. Hunter, 8 Mo. 132; Walker v. Deaver, 79 Mo. 678. (6) The judgment is conclusive against those having notice of the suit. Wait's Actions & Defenses, supra; Rawle on Covenants for Title [5 Ed.] sec. 117. (7) W. D. Pitts and John Overshiner had sufficient notice. Chamberlain v. Preble, 11 Allen, 373; Littleton v. Richardson, 34 N.H. 187; Minor v. Clark, 15 Wend. 427; Andrews v. Gillispie, 47 N.Y. 487; Paul v. Witman, 3 Watts & S. 410; Cresfield v. Starr, 36 Md. 129; Wade on Notice [2 Ed.] sec. 480; Rawle on Covenants for Title [5 Ed.] sec. 120, and notes. (8) Objections for want of notice are waived by placing a refusal to comply upon other grounds. 16 American & English Encyclopedia of Law, title notice, par. 8, and authorities there cited. Pitts based his refusal on the ground that there was no liability, and Overshiner on the ground that Pitts was not present. (9) Under the law of 1865 the widow took the fee to the homestead subject to the right of homestead of the minor children during their minority. Skouten v. Wood, 57 Mo. 380; Register v. Hensley, 70 Mo. 190; Burgess v. Bowles, 99 Mo. 548; Quinn v. Kinyan, 100 Mo. 554; Kelsey v. Frazier, 78 Mo. 114; Gragg v. Gragg, 65 Mo. 343; Rodgers v. Marsh, 73 Mo. 64; Rockhay v. Rockhay, 97 Mo. 79. (10) The sheriff's deed to Merideth Richards is void for uncertainty of description as to the east half of the southeast quarter. Evans v. Ashley, 8 Mo. 177; Clemens v. Rannells, 34 Mo. 584; Campbell v. Johnson, 44 Mo. 250. It is not even color of title as to that. Hamilton v. Boggess, 63 Mo. 244. (11) It cannot affect the rights of the widow as she was not a party to the suit. Graves v. Ewart, 99 Mo. 13; Dugge v. Stumpe, 73 Mo. 513; 2 Black on Judgments, sec. 600. (12) The deed made by Eleanor Brittain to Merideth Richards is void. First, because she was a married woman at the time, and her husband does not join in the same. R. S. 1879, sec. 669; Huff v. Price, 50 Mo. 228; Belo v. Mayes, 79 Mo. 71. Second, because it is not acknowledged as required by law; it does not show that the contents were explained, or that she was examined separate and apart from her husband. Goff v. Roberts, 72 Mo. 570; Bartlett v. O'Donoghue, 72 Mo. 563; Wannell v. Kem, 57 Mo. 478; Steffen v. Bauer, 70 Mo. 401. (13) There is no estoppel as against a married woman in a case of this kind. Thompson v. Reno, 12 Mo. 161; Crenshaw v. Creek, 52 Mo. 101; Hemstead v. Easton, 33 Mo. 142; 2 Herman on Estoppel & Res Adjudicata, p. 717. (14) And, if there was, it must be pleaded. Freeman v. Whitford, 39 Mo.App. 311; Miller v. Anderson, 19 Mo.App. 71; Bray v. Marshall, 75 Mo. 330; Hammerslough v. Cheatham, 84 Mo. 13; Campbell v. City of Kansas, 102 Mo. 326. (15) There is no adverse possession shown. Rodney v. McLaughlin, 97 Mo. 431; Warfield v. Lindell, 30 Mo. 272.
On the seventeenth of September, 1881, Merideth Richards and wife, by general warranty deed, conveyed one hundred and forty-six acres of land in Hickory county, Missouri (described in the petition), to the plaintiff, who thereupon entered into and remained in possession thereof, until evicted therefrom under a judgment of the circuit court of said county against him rendered on the twenty-first day of November, 1888, in an action of ejectment in favor of Eleanor Brittain. In the meantime the said Merideth Richards died possessed of an estate largely in excess of the value of the land conveyed, which by his last will he devised to his wife, Mary Richards, and to the defendants, John Overshiner, Reuben Richards and Eliza Pitts.
Prior to the twenty-first of November, 1888, the estate of the said Merideth was finally settled, and the said devisees came into possession of their estate under said will, and thereafter the said Mary Richards died testate, and by her last will devised all the estate received from her said husband to the said defendants, Eliza Pitts and John Overshiner; and the said defendants, John Overshiner and W. D. Pitts, are the executors of the last will and testament of the said Mary Richards, whose estate is now in course of administration by said executors.
This suit was brought by the plaintiff on the thirtieth day of November, 1888, to recover damages for breach of the covenants of warranty in the said deed so executed by the said Merideth Richards to plaintiff, and to charge the same against the defendants, his devisees.
The answer denied any breach of the covenants of the deed; any knowledge that a judgment was rendered against plaintiff in respect of said lands, as charged in the petition, and averred that, if any such judgment was rendered, it was obtained by fraud and collusion between the plaintiff and the said Eleanor Brittain.
The reply put in issue the new matter set up in the answer, and averred that the defendants Overshiner and Pitts were notified of the pendency of the suit against plaintiff, and were present at the trial when judgment of ouster therein was rendered against plaintiff...
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