Williamson v. Brown

• Decision Date: 30 March 1906
• Citation: 93 S.W. 791,195 Mo. 313
• Parties: WILLIAMSON et al. v. BROWN.
• Court: Missouri Supreme Court

93 S.W. 791

195 Mo. 313

WILLIAMSON et al. v. BROWN.

Supreme Court of Missouri, Division No. 1.

March 30, 1906.

1. DEPOSITIONS—EXAMINATION OF WITNESS— NECESSITY OF OBJECTIONS BEFORE TRIAL.

The right given by Rev. St. 1899, § 2906, providing that objections to the competency of a witness whose deposition is taken, or the competency of any question put to him, may be made at the trial for the first time, excludes the right to object at the trial for the first time to the mere form of a question asked the witness, and objections to form must be made at the time the deposition is taken, and renewed at the trial, to lay a foundation for a review of the rulings.

2. LIMITATION OF ACTIONS—LIMITATIONS APPLICABLE TO PARTICULAR ACTIONS—DEFENSES.

Where, in ejectment or other action for the recovery of title, defendant in possession prayed for affirmative relief by asking for the reformation of a deed, the defense was not barred by limitations, for a statute of limitations does not bar a defense.

3. REFORMATION OF INSTRUMENTS—PROCEEDINGS IN WHICH INSTUMENTS MAY BE REFORMED.

An instrument, whether executory or executed, which by reason of a mistake fails to express the intention of the parties, may be reformed in a bill to correct the mistake, or by way of an answer as a defense asking affirmative relief.

4. SAME—MUTUAL MISTAKE.

A vendor and purchaser procured a justice to draw the conveyance. The purchaser desired that the deed should give him a life estate, with the remainder to his wife and her heirs. The justice, instead of writing a deed granting the land to the purchaser for life, with remainder to his wife and her heirs, attempted to effectuate the agreement by writing the wife's name in the habendum clause with that of her husband, and where the expression "his heirs" occurred the word "his" was stricken out and the word "her" was written. Held, that the justice was the agent of both parties, so that his mistake became mutual and subject to correction in equity.

5. EJECTMENT—EVIDENCE—DEFENSES.

In ejectment, defendant in his answer claimed as heir of his deceased mother, and alleged that she held under a deed conveying the land to plaintiff's ancestor for life, with the remainder to defendant's mother and her heirs, and also alleged that plaintiff's ancestor made a will devising the premises to plaintiffs and defendant. Defendant, in answer to an inquiry by one interested in the estate of plaintiff's ancestor, referred to the ancestor's will, and to the fact that defendant's mother held the premises during her life, and offered a specified sum to the inquirer for his share. Subsequently defendant wrote a letter stating that the premises had been conveyed to plaintiff's ancestor and defendant's mother and her heirs. Held insufficient to show that defendant claimed under the will to the exclusion of the deed, and on his proving a right to claim under the deed a recovery was defeated.

6. REFORMATION OF INTRUMENTS—MISTAKE— EVIDENCE—SUFFICIENCY.

Evidence in a suit to reform a deed on the ground of mutual mistake examined, and held to warrant a finding that the deed was executed under mutual mistake, warranting the court to reform the same so as to correctly express the intention of the parties.

Appeal from Circuit Court, Putnam County; Paris C. Stepp, Judge.

Action by Emma Williamson and others against James R. Brown. From a judgment for defendant, plaintiffs appeal. Affirmed.

E. C. Wickless, N. A. Franklin, and Highbee & Mills, for appellants. H. G. Orton and Ira B. Hyde, for respondent.

LAMM, J.

Lemuel Wilkinson and his wife, Orpha, immigrated to Putnam county, Mo., about the year 1867, and resided there and in a neighboring county until they died Lemuel dying in 1879 and Orpha in 1897. Orpha Wilkinson was twice married, being united by her first marriage bonds to one Brown, and bearing two sons to him, to wit, Nevill and Jas. R., the latter respondent here. Lemuel Wilkinson was the husband of a former wife, Hannah, who died about the breaking out of the Civil War. By Hannah he had two sons and one daughter, who, living to maturity, begat children and died. These children, grandchildren of Lemuel Wilkinson, are appellants here. The controversy —one pertaining to real estate—thus becomes one between the grandchildren of Lemuel Wilkinson, on one side, and his stepson, Jas. R. Brown, who claims to hold in his own right and by conveyance from his brother Nevill, on the other side. This suit is to determine the estate, title, and interest of the respective parties in and to, and to recover possession of, certain parcels of land in Putnam county, Mo., described in the petition as follows: "The S. W. ¼ S. W. ¼ of section 15, and the N. ½ of the N. W. ¼ N. W. ¼ of section 22, and 15 acres and 24 poles off the west side of the N. E. ¼ N. W. ¼ of said section 22, all in township 66, range 22, and the W. ½ of the N. W. ¼ N. E. ¼ of the N. W. ¼ of section 18, township 66, range 21; the petition being in two counts, one in ejectment, the other in the nature of a bill in equity to ascertain and determine title, and plaintiffs claiming the whole title.

The answer is a general denial, with certain affirmative pleas, one being in the nature of a cross-bill asking for affirmative relief, and is to the effect: That on the 30th day of September, 1867, one John Hawk, with his wife, executed to Lemuel and Orpha, his wife, a warranty deed conveying the following lands in Putnam county, Mo.: (Here follows a description of lands the same as in the petition, except that the 15-acre tract, referred to in the petition, is by the answer set down as a 9-acre tract, and described as a part of the N. E. ¼ N. W. ¼ of section 22, commencing at a given point and running with the meandering of Barber creek, and other metes and bounds, not necessary to set forth here, and except, further, that the last tract in the petition is described in the answer as: "Also 10 acres out of the N. W. cor. of the N. W. N. E. ¼ of section 18, township 66, range 21." It may be said at this point that the decree follows the land descriptions in the answer and in the Hawk deed, which seem to be the true ones.) That said deed was for a valuable consideration paid to said Hawk by Lemuel and Orpha Wilkinson. That it was then and there the mutual intention and agreement between the Wilkinsons and Hawks that said deed was to be made so as to convey a life estate in said land to Lemuel, with remainder to Orpha, so that her heirs would inherit to the exclusion of his. That by mutual mistake the granting clause of the deed was so written as to convey the fee in said land to Lemuel, but the habendum was written so that Lemuel Wilkinson and Orpha Wilkinson and "her heirs" should have and hold said land. That the parties trusted the scrivener, acting therein for all of them, to write said deed according to their mutual intent and agreement. That they were ignorant, and supposed said scrivener had written the deed to evidence their agreement. That said scrivener was John L. Thomas, a justice of the peace, now dead. That the deed, as written, did not express the mutual intent of the parties, but was executed by Hawk and wife and received by Lemuel and Orpha Wilkinson under a mutual mistake of fact as to the interests in said land conveyed to Lemuel and Orpha Wilkinson respectively. That the deed should be reformed so as to conform to the said mutual intent and agreement. The answer pleads, also, that Nevill Brown and the defendant, Jas. R., brothers, are the only children and heirs of Orpha Wilkinson, who died in the year 1897, and that defendant had acquired the interest of Nevill in said land, and, moreover, pleads that Lemuel Wilkinson died in 1879, that all his children are dead, that the plaintiffs are his grandchildren, that their only claim of title in said land is derived from inheritance from said Lemuel, and that Lemuel left a will which has been duly probated and by which he provided and directed that his property, real and personal, should be sold and the proceeds divided among certain legatees, and that plaintiffs are not entitled to the possession of any land of which Lemuel Wilkinson died seised. The answer further sets forth that, since the death of Orpha Wilkinson, defendant has been in possession of said land as the owner in fee simple, and further averred that, in consideration of the provisions of the Hawk deed, the defendant for many years worked and cared for said Lemuel and Orpha Wilkinson in their declining years, performing services of value, to wit, $1,000. The prayer of the answer is for general relief, and specifically that the Hawk deed be corrected and reformed so as to conform to the said intent and agreement of the parties thereto, and to divest out of plaintiffs and into the defendant all the right, title, and interest of plaintiffs in the land.

By reply, plaintiffs admit the execution of the Hawk deed, the deaths of Lemuel and Orpha Wilkinson, that plaintiffs are the heirs of Lemuel, that defendant and Nevill Brown are the only heirs of Orpha, who was the widow of Lemuel, and that plaintiffs claim title as heirs of Lemuel Wilkinson, and aver that Lemuel made a will devising said real estate to his own children and to the children of Orpha Wilkinson, in equal shares, subject to a life estate in Orpha who held possession, after the death of Lemuel and during her own lifetime under said will; but they deny every other allegation in the cross-bill. Plaintiffs then say that the cross-bill does not state facts sufficient to constitute a cause of action, that the three-year statute of limitations bars the defendant's cause of action stated in his cross-bill and that the ten-year statute of limitations is also a bar.

On paper issues thus outlined, the learned chancellor, on a hearing below, found for defendant and reformed the Hawk deed. From this decree, plaintiffs appeal.

At the trial, in addition to the admissions made by the...