Whittaker v. Lewis

• Decision Date: 02 March 1915
• Citation: 174 S.W. 369,264 Mo. 208
• Parties: LYDIA A. WHITTAKER et al., Appellants, v. JAMES W. LEWIS et al
• Court: Missouri Supreme Court

174 S.W. 369

264 Mo. 208

LYDIA A. WHITTAKER et al., Appellants, v. JAMES W. LEWIS et al

Supreme Court of Missouri, First Division

March 2, 1915

Appeal from Marion Circuit Court. -- Hon. William T. Ragland, Judge.

Affirmed.

Eby & Hulse for appellants.

(1) The pleadings and the evidence, and the findings of the court show a voluntary partition as between Mary S. Lewis (under whom plaintiffs claim) and the other heirs of Benjamin M Jones, deceased. Under this theory, the following authorities govern the case: Whitsett v. Womack, 159 Mo. 14; Snyder v. Elliott, 171 Mo. 362; Propes v Propes, 171 Mo. 407; Sharp v. Sharp, 185 Mo. 529. (2) A deed conveying to a husband and wife her share of property in which she had an undivided interest by inheritance will vest in him no greater interest than if the deed were made to her alone. Propes v. Propes, 171 Mo. 417. (3) Two or more tenants in common (under parole or voluntary partition) may take shares as tenants in common; and it is not essential to such partition that the parceners join therein at the same time. 21 Am. & Eng. Ency. Law (2 Ed.), 1140j; Sutton v. Porter, 119 Mo. 100.

F. H. McCullough for respondents.

(1) James W. Lewis and his wife, Mary S. Lewis, had a perfect legal right to enter into the contract and agreement pleaded in the answer, and proven in evidence, to-wit: "That they, each, in consideration of the exchange of interests in said lands, would cause to be conveyed to this defendant, James W. Lewis, and his wife, Mary S. Lewis, jointly, as tenants by the entirety, all the said lands described in the petition, which either of them then owned or might thereafter acquire by purchase under the consideration above stated, so that in the event of the death of either, this defendant or of his said wife, Mary S. Lewis, then the survivor of them would become the owner in fee simple of the entire estate in all said lands described in the petition." The Married Woman's Act was enacted in 1889 and this transaction occurred in the fall of 1893, and all titles were acquired after 1891. Sec. 6864, R. S. 1889, now Sec. 8304, R. S. 1909; Grimes v. Reynolds, 184 Mo. 679; Rice, Stix & Co. v. Sally, 176 Mo. 107; Bank v. Hageluken, 165 Mo. 443; O'Day v. O'Day, 194 Mo. 598. (2) Plaintiffs had received defendants money and made their solemn warranty deed to him and his wife, for seven-eights interest in all said lands, and Sidney J. Jones had afterwards conveyed the other one-eighth interest to defendant and his wife. These acts certainly estopped plaintiffs from claiming the legal title. They cannot recover on the weakness of the title in defendant but must hold the legal title. Nalle v. Thompson, 173 Mo. 595; Lajoye v. Primm, 3 Mo. 529; Cottle v. Sydnor, 10 Mo. 763; Hempstead v. Easton, 33 Mo. 142. (3) The evidence in this case shows a specific contract to create a tenancy by the entirety; a well meant effort to carry out that contract and the effect of such action was to create same. Frost v. Frost, 200 Mo. 474, is based upon a contract to create an entirety. Craig v. Bradley, 153 Mo.App. 586; Johnson v. Johnson, 173 Mo. 91. (4) In equity, where the necessary parties for a complete disposition of the cause are before the court, and such a disposition can be made it is the duty of the court to do so. Trimble v. Wollman, 71 Mo.App. 467. (5) If the warranty deeds, in question, failed to vest the entire estate in the lands described in the petition, in the plaintiff and his wife, as tenants by the entirety, it was a mistake of fact, in the making of the deed, and equity will interpose for the relief of the purchaser or of those claiming under him. Mastin v. Halley, 61 Mo. 196; Hayden v. Lauffenburger, 157 Mo. 88; Johnson v. United Railways, 247 Mo. 326.

WOODSON, J. Bond, J., concurs in result.

OPINION

WOODSON, J.

The plaintiffs brought this suit in ejectment in the circuit court of Marion county, against the defendants, to recover possession of a tract of land, about fifty-seven acres, situate in said county, and particularly described in the petition.

The defendants Dearing and Music were made defendants because the defendant Lewis had executed to them a mortgage on said real estate, to secure the payment of $ 500, money loaned him by them.

The answer was a general denial, the ten-year Statute of Limitations, and an equitable defense, etc., which is very lengthy, and need not be here set forth, because the nature of it will fully appear from the facts of the case, which are practically undisputed, though not absolutely.

One Benjamine F. Jones, Sr., the common source of title, some time prior to November, 1891, died intestate, seized of two hundred acres of land, a part of which is the land in controversy. He left surviving him seven children and one grandson, the child of a deceased son. Their names were Mary S. Jones, who married James W. Lewis, the principal defendant in the case; Marion L. Jones, Martin V. Jones, William A. Jones, Sidney J. Jones, Benjamine F. Jones, Jr., Lydia A. Jones, who married Whittaker, and Samuel Jones, the son of George W. Jones, deceased.

In May, 1908, Mary S. Lewis died intestate, leaving no children or lineal descendants, and her only heirs at law were her husband, James W. Lewis, and her brothers, sister and nephew, before mentioned.

After the death of Benjamine F. Jones, Sr., his seven children and grandson undertook to make a friendly partition of the two hundred acres of land among themselves -- each being entitled to a one-eighth share therein, by executing and interchanging deeds among themselves, conveying to each other or their grantees, their respective shares in said real estate. But in doing so some of the children and the defendant James W. Lewis purchased the interest of some of the other children, and as a part of that general scheme of partition, said Lewis and wife agreed, contracted and undertook to convey her interest and the shares he had so purchased, to themselves as tenants by the entirety.

The facts of the partition and the attempted creation of the estate by the entirety between Lewis and wife were practically as follows:

On November 13, 1891, each of said children owned one undivided one-eighth interest in said land, and on said day William A. Jones and George W. Jones, for value received, by quitclaim deed, duly executed, conveyed their respective interest therein to their brothers, Martin V. Jones and Benjamine F. Jones, Jr., the plaintiffs. Thereafter, on or about November 28, 1893, the plaintiff, Marion L. Jones, for value received, $ 450, by deed duly executed, conveyed his undivided interest in the land to the defendant, James W. Lewis; and thereafter in 1891, said Lewis contracted and agreed to purchase for the sum of $ 114 the interest of Samuel Jones, the grandson. This gave him two undivided shares in the estate, and his wife, Mary S. Lewis, one share therein. Upon this state of facts the defendant James W. Lewis and his wife, Mary S. Lewis, then and there entered into a contract whereby each agreed with the other, in consideration of the exchanges or conveyances of said interests in said land between each other, as before mentioned, that they would, in a proper manner, by a general warranty deed, cause their respective interests in the land to be conveyed to themselves jointly, as tenants, by the entirety, he having the two shares he had previously purchased from Marion L. Jones and Sidney J. Jones, and she having the one share she had inherited from her father.

This contract not only embraced the interest that the defendant Lewis...