source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    ASHTON W. GARRETT et al. v. R. N. WILTSE, Appellant.
    Division One,
    December 6, 1913.
    1. CONVEYANCE: To-Daughter and Heirs: Fee to Daughter. A deed between a fatter and “Mrs. Laura Alice Garrett and heirs,” witnessing that the said father, in consideration of the sum of five dollars to him paid “by the said parties of the second part,” and conveying “unto the said parties of the second part, and to their heirs and assigns forever,” certain lands,, and reciting in the habendum, “unto her, the said party of the second part, and to her heirs and assigns forever,” and warranting the title “unto her, the said party of the second part, her heirs and assigns,” conveyed the title to her in severalty, and not to her and her three children then living, as cotenants.
    2. -: Int-s^tion: All Clauses. The intention of the grantor is the soul of the deed, and that intention is to be gathered from the whole instrument, and when ascertained must be given effect, if not in contravention of some positive rule of law.
    3. -: -: Priority of Clauses. Much of the old learning concerning the stress to be put upon one clause of a deed over another, and concerning the weight and significance to be given words because they appear in one clause and not in another, has been exploded by the rule that requires the instrument to be considered as a whole, and the grantor’s intention to be gathered from its four corners, and as so' ascertained to be enforced.
    4. -: To Daughter and Heirs. The words “and heirs” in a deed by a father naming a daughter “and .heirs” as “parties of the second part,” instead of having the office of cutting down her estate to less than a fee, look the other way. The word “heirs” is a word of inheritance, and connects itself with the idea of an ancestor and descent cast, "and, while no longer necessary under the statute to create a fee in the grantee, at common law a deed without it created only a life estate. The use of the words “and heirs” or “and heirs and assigns,” under accepted rules of construction is no longer allowed as in anywise making doubtful the intent of the grantor to pass a fee simple title to the named grantee.
    5. -: -: Words of Limitation. The words “and heirs” used in a deed may mean words of purchase, but they will not be given that meaning unless the context manifestly demands: it, and the burden is cast upon the person who claims they are words of purchase to rebut the presumption that they are words of limitation, by which is not meant the individuals, but an estate descendible to the heirs described.
    6. -: -: Heirs Living But Not Named. Where the deed named a daughter “and heirs” as “parties of the second part,” and she at that time had three children and a husband living, it is of significance, in arriving at grantor’s intention, that he did not name these children. If he desired them to take as tenants in common with her, the natural course would have been to name them, and not ambush and screen his intention by use of words importing to the contrary.
    7. -: -- — : “Parties” of Second Part: “Their” Heirs. Where a deed names a father as party of the first part, and a daughter “and heirs” as “parties of the second part” and grants certain lands “unto the said parties of the second part and their heirs and assigns forever,” it would be a loose and unsound construction to give to those awkward and inarti-ficial grammatical forms of expression the meaning of importing more than the one' daughter named. The slips of the pen in slipshod conveyancing are too many to .hinge a title or a decree alone on “parties” and “their heirs.”
    8. -: -: -: Habendum. The present office of the habendum clause of a deed is allowed to be to clarify and remove ambiguities and to smooth away inconsistencies. If the deed names a daughter “and heirs” as “parties of the second part” and grants “unto the said parties of the second part and their heirs and assigns forever” certain lands, the habendum clause, which says “unto her the said party of the second part and to her heirs and assigns forever” and warrants the title “unto her, the said party of the second part, her heirs and assigns,” dissipates the use of the plural number in the granting clause, and explains “their” to mean “her.”
    9. -: -: Intention: Aliunde Explanation, A grantee in a deed is bound to take notice of the terms used in a recorded deed to his grantor; and where an innocent purchaser for value from his grantor dealt with the deed to that grantor’s grantor on the fáith a'nd credit of its words as recorded, testimony that the grantor of such grantor (his daughter, whose deed named her “and .heirs” as “parties of the second part”) stated before and at the time of the execution of his deed to said daughter that he intended to tie up the land so that she and her husband could not convey the fee, is not competent evidence. As to such innocent purchaser of the daughter, without notice, the father presumably wrote in the deed to her all he intended; and if on its face it made her the sole grantee in fee simple, a deed by lier and her husband conveyed the title to such purchaser, whatever may have been the oral declarations of her father of his intention at the time, before, and subsequently to the execution of his deed to her.
    Appeal from. Buchanan Circuit Court. — Hon. C. A. Mosmcm, Judge.
    Bevebsed AND remanded {with directions).

      Eugene Silverman and .Charles F. Strop for appellant.
    (1) Tlie use of the word “heirs” in the premises vjf the deed carries no special significance and in nowise militates against the well-settled rule that wherever such words are used they are intended and presumed to he intended to be words of limitation and not words of purchase. It is very appropriate that these words should appear in the premises or granting clause of the deed. 3 Washburn on Eeal Property (5 Ed.), par. 6. (2) The term “heir” is a legal term and is used in a legal sense with a fixed meaning. The word has a technical signification and when unexplained and uncontrolled by the context must be interpreted according to its technical sense. 21 Cyc. 418, sec. 1. (3) The word “heir” in its natural signification- is a word of limitation, and is not to he taken nor construed to be used by the grantor as a word of purchase, hut is to he presumed to he used as a word of limitation unless a contrary intention, appears. But unless there he other controlling words clearly showing that a contrary meaning was intended hy its use, the merely presumed intention will not control that significance of the word and it will not be treated as a word of purchase unless the intent to so use it is manifest. 21 Cyc. 418, 423, 424, 425, 426. (4) If it he - conceded, which it is not, that an ambiguity arises in the granting part of the deed it then necessarily follows that such ambiguity can he explained or made plain by the habendum. The habendum is clear ancl carries full explanation to the entire deed itself. The nse of the habendum in construing the deed is well recognized in this State. Green v. Sntton, 50 Mo. 192; Linville v. Greer, 156 Mo. 397; Utter v. Sidman, 170 Mo. 284; Riñes v. Mansfield, 96 Mo. 399; Warne v. Brown, 102 Pa. St. 347; Meacham v. Blaess, 104 N. W. (Mich.) 579. (5) The real intention of the grantors should be derived by construing the deed from its four corners. Iiowell v. Sherwood, 242 Mo. 536; McCol-lock v. Holmes, 111 Mo. 347. (6) Not only under the general rules as laid down in the cases, supra, is it certain that defendant Wiltse holds a fee simple title and that the Whitson deed was sufficient to convey the fee simple title but especial attention is called to the Michigan case, supra, and also to Tygard v. Hartwell,. 204 Mo. 200. •

      Brown, Cell & Myers for respondents.
    (1) The court construes the deed under which respondents claim, by its own terms alone, therefore the admissibility of parol testimony is not a question here. Respondents neither contend nor concede that there is an ambiguity in the granting portion of the deed. Respondents claim that that part of the deed designates one grantee by name, and other grantees as a class, calling that class “heirs,” but that, appellant’s contention against the manifest intention of the grantor made it proper, since clear and convincing extrinsic evidence was at hand, to give the court the advantage of a knowledge of the surroundings and of the intention of the grantor. And since the haben-dum omits the class of grantees and runs only to the grantees designated by name in the granting clause, respondents had the right to introduce parol testimony to show that the grantor did not intend in the habendum any repugnance to the granting clause; and had a right to introduce parol testimony that they, the respondents, were the individuals who made np the class of grantees mentioned in the granting clause. 9 Ency. Ev., 373-377; Balfour v. Canal & Irrigation Co., 109 Cal. 221. (2) It is usual and convenient that parties in a deed he designated by their names, but it is not absolutely necessary, and they may he designated by description alone. Therefore a grant to-“heirs,” “sons,” “daughters,” “children,” “issue” or “next blood” is sufficiently certain, and is good. Arthur v. Weston, 22 Mo. 380. (3) Plainly the word “heirs” is used in the premises in such way as to preclude any presumption that it is used as a word of limitation. Panning v. Doan, 128 Mo. 323. (4) The word “heirs” is used in the deed in question in the sense of “children.” The two words are construed as interchangeable terms in this State. Chew v. Keller, 100 Mo. 369; Waddell v. Waddell, 99 Mo. 345; Cross v. Hock, 149 Mo. 341; 21 Cyc. 425-426. (5) In the deed under which respondents claim, Laura Alice Garrett and heirs are designated as parties of the second part; the consideration is paid by parties of the second part; the grant is to parties of the second part and their heirs and assigns. Therefore, the wqrd “heirs” is used in the same sense as “children” and is used as a word of description, and hence of purchase, and not of limitation. Hamilton v. Pitcher, 53 Mo. 334; Riñes v. Mansfield, 96 Mo. 399; Panning v. Doan, 128 Mo. 323. (6) If a deed grants title to two parties, the one will not be deprived of his interest by the covenants and warranty running to the other alone; and if the habendum be repugnant to limitations appearing in the premises it will be ineffectual to control, and may be rejected entirely when inconsistent with other clauses of the deed. Hunter v. Patterson, 142 Mo. 320; Utter v. Sidman, 170 Mo. 284. (7) Laura Alice Garrett and her children in esse took as tenants in common. Hamilton v. Pitcher, 53 Mo. 334 Panning v. Doan, 128 Mo. 323. (8) Richard M. Garrett by joining as tbe husband of Laura Alice G-arrett in the deed to appellant conveyed only his interest under his marital rights. His interest acquired under the laws of descent, through the death of his daughter Annie, remained in him. Sec. 2788, R. S. 1909.
   LAMM, J.

This is a suit under section 650, Revised Statutes 1899, to try and determine title to the west half of the northeast quarter of section 2, township 56, range 34, containing eighty-three acres situate in Buchanan county.

The case is this: All parties claim under William M. Whitson, deceased, the common source of title. In 1893 William conveyed by warranty deed, duly recorded, to his married daughter, Laura Alice Garrett, “and heirs,” for a consideration of five dollars. (This deed is the bone of contention and its terms will hereafter appear.) At the date of that conveyance Laura Alice had three children. Eight years afterwards, in March, 1901, Laura Alice and her spouse, Richard M., by warranty deed put.of record, conveyed to defendant for a consideration of $3500, and put him in possession. At the date of this latter deed another child, Dixie, had been born to her and Richard. This child died prior to suit. Both deeds purport to convey the whole title. In 1908, Laura Alice being yet alive, her said spouse and two of her said children in being when Whitson conveyed to her, and the husband of one now dead, brought this suit to establish an interest in the land.

The court decreed that Laura Alice took title under the Whitson deed as tenant in common with her three children then in being — one fourth to each. Further, one of said children, a married daughter, having since died and left no children, it was adjudged that defendant stood seized as grantee of Laura Alice of an undivided one-fourth plus an undivided one-thirty-second, the latter coming to Laura Alice as heir of her deceased daughter and passing' to defendant under her said warranty deed; and, on the theory indicated, adjudged to plaintiffs each a specified undivided interest as tenants in common.

Other terms of this decree may become material later on, if we hold against defendant’s principal contention presently stated.

The ease runs on the theory that defendant bought in good faith for full value and took and held possession under his deed claiming the fee; so that, unless the deed from Whitson, ex vi termini, is to be construed as notice of an interest in the “heirs” of Laura Alice, he had no notice of any such interest, this notwithstanding there was ¡testimony showing declarations of Whitson made before and at the time of the execution of his said deed to the effect that he intended to tie the land up so Laura Alice and her spouse could not convey the fee, and later declarations to the effect that he had done so. But none of these verbal acts or declarations were brought home to defendant. His counsel in due time objected to them and, the trial court reserving its ruling, the record shows that at the close of the case the objections were neither ruled on nor was the decree founded on the testimony objected to. It was founded on the face of the deed itself.

The main question is: (1) Did the deed from Whit-son to Laura Alice, on its face, and by virtue of its terms, convey the whole title to her? Defendant contends it did. Plaintiffs contend contra. The court held with plaintiffs, and defendant appeals.

A subsidiary question is: (2) If we refuse to follow the court’s construction of the deed but hold contra and with defendant, then (this not being a suit in equity to reform the Whitson deed and the intentions and declarations of the grantor aliunde the deed not having been brought home to defendant before his purchase so as to charge him with notice) is the testimony of grantor’s said intentions and declarations admissible against defendant?

There are other nice questions arising on other hypotheses (for instance, whether Bichard M. is bound on the covenants of warranty in his deed to defendant, whether Laura Alice did not take a life estate under the Whitson deed, and whether the “heirs” did not take as a class which opened and let in the child born after such deed and dying before suit) but none of therfi are important if we hold with defendant on the two first formulated. To those we address ourselves.

The Whitson deed, omitting acknowledgment not questioned, best speaks for itself (we italicize the words on which the court’s construction must stand or fall), viz.:

Warranty Deed. This deed, made and entered into this twenty-fifth day of March, in the year of our Lord, eighteen hundred and ninety-three, by and between William M. Whitson (a widower) of the county of Buchanan and State of Missouri, of the first part, and Mrs. Laura Alice Garrett and heirs of the county of Buchanan and State of Missouri of the second part.
“Witnesseth: That the said party of the first part, for and in consideration of the sum of five ($5.00/100') dollars, to him in hand paid by the said parties of the second part, the receipt whereof is hereby confessed and acknowledged, has given,, granted, bargained and sold, and by these presents does give, grant, bargain, sell, convey and confirm unto the said parties of the second part, and to their heirs and assigns forever, the certain tract, piece or parcel of land, lying and being* in the county of Buchanan and State of Missouri, to-wit:
“The west half of the northeast quarter of section No. two (2) in township fifty-six (56) of range thirty-four (34) containing eighty-three acres of land.
“To have and to hold the said tract, piece or parcel of land with all the privileges and appurtenances-thereunto belonging, or in anywise appertaining unto-her the said party of the second part, .and to her beirs and assigns forever; and tbe said party of tbe first part for bimself, bis beirs, executors and administrators, does covenant and agree that be will warrant and forever defend tbe title to the said tract, piece or parcel of land, and every part thereof, unto her the said party of the second part, her heirs and assigns, against tbe lawful claim or claims of all persons, whomsoever.
“In testimony whereof, tbe said party of tbe first part has hereunto set bis band and seal tbe day and year first herein written. W. M. Whitson (Seal).”

Assuming that the “premises” of a deed are those parts preceding the habendum clauses (Utter v. Sidman, 170 Mo. 1. c. 294) it will be observed that the words, ‘ ‘ and heirs, ’ ’ are used in that part of the premises reciting the parties. When we come to the granting clause the plural form is used for nouns and pronouns in connection with the second party (thus, “parties” and “their beirs”), and when we come to the haben-dum and warranting clauses the singular form is used (thus, “her, the said party of the second part and to. her beirs,” and “unto her, the said party of the second part, her heirs and assigns”).

On such record we are of opinion the court erred in construing the deed, and that, under accepted rules of construction, the fee simple estate passed to Laura Alice Garrett. This because:

I. (a) Not only is the general maxim applicable, viz., that the intention of the man is the soul of the instrument (animus hominis, etc.), but the guiding rules of construction for both deeds and wills are that the intent must be got at and given effect (if not in contravention of some positive rule of law), and that words used are to be understood in the sense indicated by the whole instrument, i. e., that the intent'must be gathered, not from one clause or another, bnt from the fonr corners of the instrument. [Chew v. Keller, 100 Mo. 1. c. 369; Utter v. Sidman, supra.]

Applying those cardinal rules, we must take the words of grantor in all the clauses of his deed as indicating his intention. Much of the old learning concerning the stress to be put on one clause of a deed over another and concerning the weight and significance to be given words because they appear in one clause and not in another is exploded. Commenting on the modern as distinguished from the old doctrine in that regard, it was well said by Marshall, J., in Utter v. Sidman, supra: “The modern rule, which prevails in this State, is much simpler and much more calculated to carry out the wishes of the grantor. The intention of the grantor, as gathered from the four corners of the instrument, is now the pole star of construction. That intention may be expressed anywhere in the instrument, and in any words, the simpler and plainer the better, that will impart it, and the court will enforce it no matter in what part of the instrument it is found.”

(b) The words “and heirs,” used in the premises of the deed, following Laura Alice’s name, are stressed as of significance by respondent; but those words have no office to cut down her estate ^ess ^an a ^ee- Thny point the other way. The word “heirs” connects itself logically with the concept of inheritance, with the idea of an ancestor and descent cast; for no man is heir to the living man, Nemo est haeres viventis. Accordingly, at common law the word “heirs” was necessary to pass to a grantee an estate of inheritance. Without it the estate conveyed was for life. True, it is no longer necessary to use the word “heirs” to pass a fee simple. The common law in that regard is exploded by section 2870, Revised Statutes 1909, reading:

“The term ‘heirs,’ or other words of inheritance, shall not he necessary to create or convey an estate in fee simple, and every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear, or be necessarily implied in the terms of the grant.”

Bnt whilst the nse of the word “heirs” is not now essential in passing a fee to the named grantee, yet its nse or that of the words “and heirs” or “heirs and assigns” is not to be allowed, under accepted rules of law, as in anywise making doubtful the intent of a grantor to pass a fee simple title to the named grantee. [Gannon v. Albright, 183 Mo. 1. c. 248 et seq.] Such words, unless controlled or modified by the context, bnt hark back to and connect themselves with the usages, the learning and the rules of common law conveyancing. They are highly technical and have a fixed meaning and when used in conveyancing, unless manifestly controlled by the context, as said, are held to be words of limitation and not words of purchase. [21 Cyc. 418.] Words of limitation, in this technical sense, mean words “which do not give the estate imported by them originally to the heirs .... described, or to whom they are expressly directed, but only extend the ancestor’s estate ... to an estate of inheritance descendible to the heirs described. . . . ” [Fearne on Rem., 77.] And on page 78: “When the words heirs, etc., operate only to expand an estate in the ancestor, so as to let the heirs described into its extent and entitle them to take derivatively, through or from him, as the root of succession, or person in whom the estate is considered as commencing, they are properly words of limitation; but when they operate only to give the estate imported by them, to the heirs described, originally and as the persons in whom that estate is considered as commencing, and not derivatively from or through the ancestor, they are properly words of purchase. ... In general, words of purchase are those, by which, taken absolutely without reference to, or connection with, any other words, the estate first attaches, or is considered as commencing in the person described by them; whilst words of limitation operate by reference to or connection with other words, and extend or modify the estate given by those other words.”

Undoubtedly the words “and heirs” may he used in deeds and wills in the sense of sons, daughters and children, etc., that is', as words of purchase, when the context demands such construction, but the burden is thrown upon him who contends they are words of purchase to rebut the presumption that they are used as words of limitation, i. e., as intended to mean not individuals but quantity of estate and descent, which in a fixed legal sense they import, and the intent not to use the words in their legal and fixed sense must be unequivocal and not to be misunderstood. [Guthrie’s Appeal, 37 Pa. St. 13 et seq.]

We conclude, then, that respondent’s case does not prosper on the theory of a controlling significance in his favor in the use of the words “and heirs” in the premises of the deed.

Look at it from another viewpoint. As said, there were three children in being, born of Laura Alice by Richard, her husband, at the time of the Whitson deed. Now, in construing a deed it is sometimes worth while to take into account what the grantor should say but does not say as well as what he does say in getting at his intent. This grantor in making a conveyance on which, when spread of record, the world might act, named none of those children. If he desired them to take a present interest as tenants in common with their mother why did he not say so and name them? Is that not the usual way? Why, in dealing with grandchildren, did he ambush and screen his intent by use of a term importing to the contrary? In speaking to that phase of the matter the words of Valliant, J., in Tygard v. Hartwell, 204 Mo. 1. c. 206, are apposite thus: “It would be a very strained construction to say that it was the intention of the parties to this deed to convey the land to James F. White and his children as ■tenants in common. If such had been the intention the natural course would have been to have inserted the names of the two children then living in the granting clause of the deed as grantees. If it was the intention to include not only those then in being but those thereafter to be born, then the idea of a tenancy in common must be excluded because the unborn children could not be made tenants in common in an estate presently created. [Kinney v. Mathews, 69 Mo. 520; Rines v. Mansfield, 96 Mo. 394.]”

(c) When we come to further consider the granting clause of the deed, we find plural forms are used, viz., “parties of the second part,” “parties of the second part and to their heirs and assigns forever. ’ ’ Much is made of that feature. But we think it loose and unsound construction to give to those awkward and inartificial grammatical forms the labored significance insisted upon by-learned counsel for respondent. Their argument runs after this fashion: That the phrase “parties of the second part” should be held to import more than one grantee, to-wit, the heirs of Laura Alice then in being. Now, even in construing public statutes, the rule is to include the plural in the singular number and vice versa. Likewise with gender, when the form is masculine it includes the feminine. But it would be unprofitable to pursue the matter from a philosophical standpoint and point out why in so grave a matter as title the plural form is of little value. The slips of the pen are too many in slipshod conveyancing to hinge a decree alone on “parties” and “their heirs.” In this case, however, let the grantor tell his own meaning. To do so is allowable exposition; for does not every man know what he wants to say better than the other fellow? It will be perceived that presently he recurs to the same subject-matter in the habendum elanse and therein he makes all plain by speaking of “her, the said party of the second part,” and “to her heirs and assigns forever” — not once bnt twice — -and it mnst be held that whatever ambiguity arises by the prior nse of the plnral number in the granting clause is dissipated by the nse of the singular number in the 'habendum clause. Moreover, why should Whitson not warrant to his grandchildren as well as to their mother,, if he intended to grant to them? If his bounty took them in, why did he exclude them in his covenants of assurance ? Why caress with one hand and smite with the other? To hold otherwise than as indicated would contravene .a settled rule of construction, and put a harsh and strained construction on the ___ deed taken as- a whole. It would magmiy a pinprick of mere possible inadvertence into pivotal and controlling substance, and build this deed up around a shadowy speculation. We think we are on safe ground to say that whatever was the technical function of the habendum clause of a deed in olden times, its present office may be allowed to be to clear up the conveyance by clarifying and removing ambiguities, and smoothing away inconsistencies. It will even control or modify the granting clause when by such control or modification the intent of the grantor as expressed in his words is made plain and effectuated. [Utter v. Sidman, 170 Mo. 284, and cases therein cited and analyzed; Linville v. Greer, 165 Mo. 1. c. 397; Grooms v. Morrison, 249 Mo. 1. c. 554; Rines v. Mansfield, 96 Mo. 394; Williamson v. Brown, 195 Mo. 1. c. 337; McCullock v. Holmes, 111 Mo. 445; Meacham v. Blaess, 141 Mich. 258; Green v. Sutton, 50 Mo. 1. c. 192.]

II. The conclusions already reached and announced bring us to the final question: What proba-live force is to be given to the declarations (herein-before mentioned) of Whitson, made before, at, and after his conveyance to Lanra Alice?

Mark, we are not dealing with a case wherein Whitson is suing’ his daughter in equity to correct his ■deed, or wherein the children of Laura Alice are suing their mother to correct such deed on some equita- ble ground like mistake, or wherein the children are suing the mother in equity (before her conveyance) to adjudge ti-tie as between themselves. The case up is one against an innocent purchaser of the land, who dealt with it and the mother on the strength of the title the deed imported to convey to her by its own words, and not otherwise — dealt on the full faith and credit due the record of the deed, and not otherwise. Under such circumstances, for the trial court to get at the intent of grantor (not from the words he set down in the instrument at the time to be presently blazoned forth on the records in the office of the recorder of deeds, but) from the admissions of Whitson of which defendant had no notice, will not.do. Defendant was bound to take notice of the terms of the Whitson deed when recorded. [R. S. 1909, sec. 2810; Seilert v. McAnally, 223 Mo. 1. c. 518.] Whitson contemplated that form of notice when he executed his deed. The law held the same end in view in the registry acts. He is charged, too, with constructive notice of everything contained in recorded deeds that lie in and make up the chain of title under which he holds. [Case v. Goodman, 250 Mo. 1. c. 115, and cases cited.] So, if he had had actual notice that his grantor held a base fee, or one subject to outstanding equities or rights not disclosed by the deed records or that there was a mistake in the deed, that would be another matter. But, as said, no such case is here; and we know of no principle of real estate law that would' permit the title of a bona-fide purchaser to be affected or impaired in the way proposed. As to defendant, presumably, Whitson wrote into that deed all he intended to. Since the mitten word remains and the spoken word flies, when parties sit down to write a contract they are presumed to set forth the whole of it. Defendant could rest on that presumption of law; for no man is held to be, or need to be, wiser than the law. He is presumed to know it, but not to be wiser than it. If, then, the deed when taken as a whole bore on its face notice of a base fee or lesser estate than a fee in his grantor, or words putting defendant on inquiry, he must abide the fact or pursue the inquiry. But we have held the contrary to be the fact in the first paragraph, and must rule the offered testimony of no probative force.

The disposition made of questions discussed, makes other questions dealt with in briefs unimportant.

Let the judgment be reversed and the cause remanded with directions to find against plaintiffs and decree title in defendant. It is so ordered.

All concur.


author: WOODSON, P. J.

text:
    HARRIETT A. MERRILL et al. v. ELLIOTT W. THOMPSON et al., Appellants.
    Division One,
    December 6, 1913.
    1. EVIDENCE: Credibility: Number of Witnesses: Paroi Agreement to Convey Land. The weight and convincing character of testimony does not depend so much upon the number of witnesses in a cause, as upon the intelligence, honesty and . veracity of those who do testify. It cannot he held as a rule of law that a parol agreement to convey land cannot he established by the uncorroborated testimony of one witness. But in this case the one witness was corroborated.

      2. PAROL CONTRACT To DEVISE LAND: Sufficient Evidence. In 1869 Nathan Thompson owned forty acres of land on which he resided with his wife, five sons and two daughters. By 1882 the sons had married and left home. By 1884 or 1885 he and his wife had both greatly declined in health, and were on that account unahle to make a living for themselves, the rent of the farm being insufficient for the purpose. One of the daughters, Sophia, then a widow, was temporarily staying at home, assisting in the household duties; the other, the plaintiff, had for several years taught school, but lived at home, and assisted in the support of the family out of her salary. One of the sons testified that his father made a parol contract with the two daughters, by which he agreed that, if they would remain at home, take care of and support him and their mother as long as they lived, pay his debts, keep up the home, and furnisji them with support, medicines and physicians, he would will them the farm; Sophia was to stay with them all the time and do the household work; plaintiff was to reside at home, also, but to teach school, and use her salary and the rents or profits of the farm to maintain the household, furnish him and his wife the means for their maintenance, pay the taxes and keep the place in repair. They religiously kept the agreement until the death of the father in 1893 and of the mother in 1899. About 1886 the father made his will by which he devised the farm worth then $1400 or $1500 to the two daughters subject to a life estate in favor of his wife, but he died intestate as to his other children, because the will failed, by error of the scrivener, to mention their names. Thereafter all the pretermitted heirs, except defendant, by quitclaim deeds, conveyed their interests to the daughters. Defendant brought suit for partition about 1900, which was dismissed because of his inability to give bond for costs, the motion alleging he had no interest in the land. Thereafter Sophia conveyed to plaintiff, and she constructed a new house on the land and made other improvements at a cost of $2500, and has since been in exclusive possession, and brought this suit to determine the title. Held that, tested even by the rigid rule laid down in Walker v. Bobannan, 243 Mo. 1. c. 135, the proof establishes a definite parol contract to convey the land to the two daughters, and their complete performance thereof is referable to it.
    Appeal from Livingston Circuit Court. — Eon: Arch B. Davis, Judge.
    AFFIRMED.

      Jolm II. Taylor and Paul D. Kitt for appellants.
    (1) This being an equity case, the court is not bound by the finding of the trial court, but will examine and weigh the evidence to ascertain whether it is sufficient to justify the decree. Collins v. Harrell, 219 Mo. 279; Lacks v. Bank, 204 Mo. 455; Plummer v. Knight, 156 Mo. App. 333; Russell v. Sharp, 192 Mo. 291; Wad-dington v. Lane, 202 Mo. 415'. (2) The trial court erred in finding that there was an oral contract between the deecased Nathan Thompson and his two daughters, the plaintiff and Sophia Fulkerson, by which the said Nathan agreed to give or leave the land in question to such daughters, because: (a) The alleged oral contract was not clear, explicit and definite, (b) If the contract was proved, it was not the contract pleaded, (c) The contract was attempted to be established by conversations too ancient and too loose and casual, (d) The proof was not such as to leave no reasonable doubt that the contract as pleaded was in fact made and that full performance has been had. (e) The work relied upon as constituting performance is not referable solely to the alleged contract sought to be enforced, but might be referable to some' other cause, (f) The rent received by plaintiff will more than offset any sums paid out by her in the support, maintenance and care of her father and mother; so no fraud will be worked on. plaintiff by refusing to enforce the alleged contract, (g) The proof, at best, shows a mere disposition or intention to devise by will as a reward for services already performed and money already advanced, and does not show a contract to devise made before the acts of performance relied upon were had. Walker v. Bohannan, 243 Mo. 119; Forrister v. Sullivan, 231 Mo. 345; Oollins v. ITarrell, 219 Mo. 279; Wales v. Holden, 209 Mo. 552; Kirk v. Middlebrook, 201 Mo. 245; Oliver v. Johnson, 238 Mo. 376; Russell v. Sharp, 192 Mo. 270; Berg v. Moreau, 199 Mo. 433; Kinney v. Murray, 170 Mo. 700; Rosenwald v. Middlebrook, 188 Mo. 58; Emmel v. Hays, 102 Mo. 186; Rogers v. "Wolfe, 104 Mo. 9. (3) The making of the will by Nathan Thompson, plaintiff’s father, is no evidence of a contract. (4) The evidence showing payment of debts of Nathan Thompson by the plaintiff was not relevant or material. The contract pleaded did not count on payment of debts as a consideration for the alleged provision by Nathan Thompson. The court erred in hearing incompetent evidence subject to objection. Russell v. Sharp, 192 Mo. 270; Asbury v. Hicklin, 181 Mo. 670: (5) The plaintiff did not acquire title by adverse possession. The court found she did not and the evidence sustained the finding, from which she has not appealed. Hen-drick v. Musgrove, 183 Mo. 300; Golden v. Tyer, 180 Mo. 201; Benoist v. Rothschild, 145 Mo. 408; Warfield v. Lindell, 30 Mo. 272.

      Leivis A. Chapman for respondents.
    (1) In equity cases the appellant court will pass upon the facts together with all questions involved, though even in an equity case, where the evidence is evenly balanced, deference is paid to the finding of the chancellor. So in this class of cases, it is held that the credibility of witnesses can best be determined by the chancellor, who has the witness before him, and the Supreme Court will defer somewhat to finding of the chancellor; and when the evidence is conflicting, the Supreme Court will defer to the. finding of the trial judge in equity cases. Equity cases are tried de novo,, and the evidence reviewed, but the appellate court looks into the whole record, and if the judgment is right and founded upon competent proof, it will be affirmed. Benne v. Schnecka, 100 Mo. 250; Cox v. Cox, 91 Mo. 71; Erskine v. Lowenstein, 82 Mo. 301; Plum-mer v. Knight, 156 Mo. App. 333; Carpenter v. Roth, 192 Mo. 659; Williams v. Husky, 192 Mo. 549. (2) The finding and judgment was correct. The evidence that there was an oral contract made by Nathan Thompson with the plaintiff, Harriett, and her sister, Sophia, was clear and abundant. There really was no conflict on this point. The testimony of Fountain K. Thompson was clear. His testimony was that his father talked to him a number of times and then made the agreement with these daughters. The father had no other children with him, and these daughters were under no more obligations to support, nurse and attend their parents than the other children, who had left home and they were not obliged to stay. The evidence shows that the father agreed that if they would stay with him and care fo.r him and their mother, as long as they lived and maintain a home for them on this land during their lives he would will them the land. They were to keep up the property, pay all the debts against it, pay all taxes and make all repairs. In other words this plaintiff, with her sister, were to support these old people and keep a home on that place for them, and stay with them and care for them, and furnish whatever money was necessary. It was understood that the plaintiff, Harriett, could not be with them all the time, as she had to make the money necessary to support them. These old people were in poor health and not able to work, and they wanted their daughters to care for them, because these daughters would give them that care and attention during the remainder of their days, such as money cannot buy. The only property was this forty acres of land, partially encumbered, worth at the time this contract was made about $1200 to $1400. Certain kinds of services of a personal nature have been recognized by a dear majority of the American cases as a sufficient act of part performance, unaided by possession or other .act on plaintiff’s part where the services rendered are of such a peculiar character that it is impossible to measure their value by any pecuniary standard, and where it is evident that the parties did not intend to measure them by any such standard, it is impossible adequately to compensate the party performing the services except by a decree of specific performance. There are some services that are incapable of valuation in money. As to these, the law permits individuals to make their own contracts. Sutton v. Hayden, 62 Mo. 114; Hiatt v. Williams, 72 Mo. 214; Gupton v. Gupton, 47 Mo. 37; Healey v. Simpson, 113 Mo. 346; Hall v. Harris, 145 Me. 614; Hoch v. Habel, 32 Mo.-App. 103; Sharkey v. McDermott, 91 Mo. 647; Fuchs v. Fuchs, 48 Mo. App. 18; Carney v. Carney, 95 Mo. 353; Berg v. Moreau, 199 Mo. 416; Niowack v. Berger, 133 Mo. 24; Russell v. Sharp, 192 Mo. 270. (3) It is competent for a person to make a valid and binding agreement to make a particular disposition of his property by last will and testament. Faxton v. Faxton, 28 Mich. 159; Sword v. Keith, 31 Mich. 247; Demoss v. Robinson, 46 Mich. 62; Meundy v. Foster, 31 Mich. 313; Johnson v. Hubbell, 10 N. J. E,q. 332; Van Dyne y. Vreeland, 11 N. J. Eq. 370; Carmichael v. Carmichael, 16 Am. St. 528; Bird v. Pope, 73 Mich. 483; Davidson v. Davidson, 13 N. J. Eq. 246. (4) The point is made that the will of Nathan Thompson is no evidence of a contract. It is true that the will, while it devised this property to the plaintiff and her sister, Sophia, did not mention the defendant, Elliott ~W. Thompson. The will as a conveyance of the property, so far as Elliott W. Thompson was concerned was a nullity. It was a mere attempt to carry out the agreement. The will was merely introduced in evidence to support the contract, and it was certainly very strong evidence to show the intent of the father, who doubtless supposed it was sufficient to accomplish his purpose. That the attempt to make a good will which failed was the fault of the scrivener. The attempt to make a good will, which failed, certainly did not place the daughters in a worse position than they were in before.
   WOODSON, P. J.

This was a bill in equity instituted in the circuit court of Livingston county, by the plaintiffs against the defendants, to quiet title, but-in reality, to specifically enforce an oral contract alleged to have been entered into by and between Harriett A. Merrill, nee Thompson, and her sister Sophia, with Nathan Thompson, their father, whereby he agreed to convey to them a certain forty acres of land situated in said county, and particularly described in the bill, in consideration that the former agreed to live with, care for, support and maintain him and his wife, their mother, during their natural lives; Harriett, alleging* and claiming that she, prior to the institution of the suit, purchased the interest of her sister Sophia, and that she intermarried with her coplaintiff, "William T. Merrill.

The pleadings are in no manner assailed1, and we will therefore put them aside.

A trial was had and the court found the issues as to the contract (title also having been alleged to have been acquired by the Statute; of Limitation) in favor of the plaintiffs (there being no finding either way as to the claim of title by adverse possession), and in due time and in proper manner defendant duly appealed the cause to this court.

The evidence as usual in such cases, is quite voluminous, which we have carefully read, and that for the plaintiff tended to prove the following facts:

That sometime in the year 1869, Nathan Thompson acquired title to the land in controversy, moved thereon and there resided until his death. His family consisted of himself, wife and eight children. One, Dora, died withouit marrying. Prior to 1882, all of the other children married and left home, except the two daughters, Harriett and Sophia, who were living with their parents. At that date, both of them were past the age of minority, and the former had been teaching* school for a number of years, in the neighborhood, but resided with her parents. For some two or three years prior to this time, the father and mother depended largely upon these daughters for support. Harriett, when not teaching, resided with her father, and assisted in doing the household work, and assisted her sister Sophia,who devoted all of her time to the house and to her parents.

At and prior to that date, the father’s health had failed and he was able to do scarcely any labor. Likewise, the mother was an invalid and needed care and attention. That it was common knowledge to the members of the family and to the community, that if left alone, they would not he able to make a living. That the rent of the farm would1 not he sufficient to support and maintain them.

For years Nathan Thompson had been more or less in debt, some of which was secured by the land.

I think the record shows practically without contradiction, that at this time the condition of Nathan Thompson and his- wife was such that they needed constant care and attention, and that they must depend upon some one for care and maintenance.

They had im means, practically, except this forty acres of land, and were unable to earn a dollar, both having been in poor health for years, and were growing worse all the time. He was then sixty-five and she was sixty-one years of age.

It was under those conditions that in 1883 or 1884, not later than 1886, the father is alleged to have made and entered into the contract with his two daughters, which is the subject of this litigation.

The evidence tended to show that he agreed with them, if they would take care of and support him and their mother, as long as they lived, stay with and look after them and provide them a home on this tract of land so long as they lived, pay their debts and keep the place in repair, that he would will the land to them when he died.

That Sophia was to stay with them, in the future and care for them and do the household work, as she had in the past, and that Harriett was to continue teaching and reside with them and assist in the household work and in caring for them while there.

That she was to furnish the necessary means by which the house and premises were to be kept up, also the money necessary for the care and support of the father and mother, as well as for all medicines- and medical attention as might be necessary. That she should procure the means for those purposes from the income, rents and profits realized from the forty acres of land and from her salary as teacher.

That they agreed to all that and faithfully carried out the agreement. That they took charge of the place and maintained, cared-for and supported their father and mother; also provided them with all necessary medicines and medical attention as long as they lived.

The former died in November, 1893, and the latter in February, 1899, he being about seventy-five and she about seventy-seven when they respectively died.

That Harriett paid all of her father’s.debts, individual as well as those against the farm. She made all necessary improvements, kept the place in good repair and paid all the taxes during all of those years and after the death of her parents she paid all the funeral expenses and had suitable monuments erected at their graves.

That at the time this agreement was made, said forty acres of land was worth from $1200 to $1400.

The debts of the father amounted to several hundred dollars, the exact amount not shown, which were all paid by Harriett. She had also furnished hex father considerable sums of money prior to making this agreement with him, in order to help him make a living.

That in 1886, in order to carry out his part of the agreement, her father made and published a will by which he devised all of said land to his daughters Harriett and Sophia, subject to a life estate to the mother.

Fountain K. Thompson, a son, was made executor of the will, which after the death, of Nathan Thompson, was duly probated in the probate court of Livingston county, on March 7,1894.

After its probation and after the death of the mother in February, 18991, it was discovered that the will was defective, in that, through an error of the scrivener, it failed to name the other children or heirs of the testator. Upon the discovery of this defect, Harriett and Sophia undertook to correct the defect by getting quitclaim deeds from all of the children of Nathan Thompson, their father, conveying their interest in this land to them, Harriett and Sophia. That all the children except the defendant Elliott W. Thompson, in compliance with their request, without reward or compensation, executed and delivered such quitclaim deeds to them.

That on August 3, 18991, this defendant brought a partition suit against all the children and heirs of Nathan Thompson, including Harriett and Sophia, to partition this land. This suit was returnable to the September term, 1899, of the circuit court.

The plaintiff here, the defendant there, filed a motion requiring the plaintiff to give security for the costs, for the reason that he had no interest in the property and was insolvent. The motion was sustained and defendant having failed to give security for costs, as ordered by the court, the cause was dismissed.

That after the death of the mother, Harriett and Sophia' continued in the exclusive possession of said property, claiming title thereto against everyone; renting the same and' receiving the rents thereof; also made valuable improvements thereon and paid the taxes thereon up to February 15', 1904, when Sophia conveyed her interest in said lands to Harriett; and from that date to the date of the trial, she had the sole, exclusive and adverse possession thereof, claiming title against the world.

That-she continued to rent the land and receive the rents thereof. She constructed thereon a new house and made other improvements which cost her $2500'. The defendant at all times knew of all these facts hut made no demands for his alleged interest therein, or protests arising out of the same.

There is hut little difference between the foregoing summary of the evidence and that prepared hy counsel for appellant; they differ in degree only.

With no design to criticise counsel for appellant, yet no disinterested, unbiased mind can read this record and reach any conclusion except that in the statement of the case they have minimized some of the important facts thereof; otherwise, their statement is well enough, which I will here copy, and thereby greatly shorten the statement from what it would he, should I attempt to state even the substance of the evidence.

Since counsel for both parties have seen proper to present this case upon the ultimate facts which the evidence tends to prove we feel justified in disposing of the case upon that theory, without going into and setting out the details of the voluminous evidence.

Said statement of counsel for appellant omitting formal and undisputed matters is as follows:

“About the year 1876 the family of Nathan Thompson then living with him on said farm consisted of himself and wife and two daughters, plaintiff and Sophia B. Fulkerson. All his other children had theretofore married and left home.
‘ ‘ The daughter Sophia had been married but prior to 1876', had separated from her husband and returned to the home of her father and mother, where she lived during her father’s life and up to the- time of her mother’s death in 1899. The plaintiff never left home, and tbe evidence is she had made her home with her parents and was making* her home with them during all the time the parents lived on this farm.
“It is undisputed that both the daughters, plaintiff and Sophia B. Fulkerson, had made their home with their parents for years prior to the date of the alleged contract between the father and the two daughters, and during all that time had looked after and cared for their parents and assisted in performing the farm and household duties. It is also uncontroverted that the daughter Sophia had during this time stayed at home, attended to such duties as she could around the farm and looked after and cared for her parents; while the plaintiff had been a school teacher for a number of years prior to the date of the alleged contract and had during that period borne more or less the expenses of the family, of which she was a member, as well as paying some of the taxes, some of the interest on debts her father owed, and otherwise contributing to the family support.
“After the date of the alleged contract and during the father’s life and up to the mother’s death, both of these girls continued to perform the same character of acts and do the same character of work they had done before. The daughter Sophia continued to live at home, look after the household duties and do such work as she could1 about the farm, caring for and assisting her father and mother, the same as she had done prior to said alleged date. The daughter Harriett, the plaintiff, continued to make her home with her parents, bearing more or less of the family expenses, paying some of the taxes, some of the interest on her father’s debts, and otherwise contributing to the general family fund, the same as she had done previous to the alleged making of the contract.
“Thus it is seen that the affairs of this family followed the same course without interruption for years before as well as after the time of the alleged contract. In other words, the record shows no change in the situation, duties, acts or work of these two girls as a result of such alleged contract. But on the other hand, their situation remained unchanged; they performed the same acts and duties and did the same work as they had done before.
“There seems to have been no separate account kept of the amount spent by the plaintiff over and above the amount realized from the farm. Nor is the record clear that the income from the farm fell short, to any great extent, of maintaining the family. If it did, it is not stated how much. But it is clear they all lived together, each contributing in. his own way to the maintenance of the family.
“The contract alleged and set forth in the plaintiff’s petition as having been made between the father and the two daughters, for which specific performance was asked and decreed, is as follows:
“ That on said — day of December, 1886, the said Nathan Thompson and the plaintiff, Harriett A. Merrill, then Harriett A. Thompson, and the said Sophia B. Fulkerson, made an agreement by which the plaintiff, Harriett, and her said sister, Sophia B. Fulkerson, were to become the owners of the said land'in fee simple, in consideration that they would take possession of said land, take care of and support and maintain their father and mother in sickness and health, and see that they had food, shelter, clothing, nursing, medical attention, and all necessaries; and the said' plaintiff and her sister, Sophia B. Fulkerson, should live on the place with their father and mother and give them the benefit of their society and the comfort of their presence and help as long as their father and mother should live, and would farm said land and improve the same and maintain a home for their father and mother with them as long as their father and mother should live, and should see that their father and mother, when deceased, should receive proper burial and their funeral expenses paid. That the said Nathan Thompson, their • father, was to convey them said land so as to make them owners thereof in fee simple. . . .
“While the plaintiff procured deeds from the other children of the deceased, except the defendant, Elliott W. Thompson (they making deeds voluntarily), for their interest in the farm, she made no claim to any of them that she was the owner of the land by reason of any contract. So far as the record shows, plaintiff’s only claim to this land was based entirely on the intention of the father expressed hy his will.
“Her father made a will hy which he devised the farm in question to his wife for life, the' remainder to> the plaintiff and her sister Sophia. The will did not mention the other children of the testator. So, as to such other children, the defendant being one, the father died intestate'. . . .
“Since the death of the father and mother the farm has been rented and the rent has been paid to plaintiff. As nearly as can he told from the record, there has been collected and paid to her at least one thousand dollars in rent and, as well as can he gleaned from the evidence, that amount will more than cover all the plaintiff has paid out of her own funds toward the performance of the alleged contract. . . .
“Appellant contends: That the evidence does not prove the contract as pleaded, does not show any contract was ever had, and that the finding was for the wrong party and should he reversed.”

The following are the errors assigned hy counsel for appellant:

“The trial court erred in finding that there was an oral contract between the deceased Nathan Thompson and his two daughters, the plaintiff and Sophia B. Fulkerson, hy which the said Nathan agreed to give or leave the land in question to such daughters, because:
“ (1) The alleged oral contract was not clear, explicit and definite.
“ (2) If the contract was proved, it was not the contract pleaded.
“(3) The contract was attempted to he established by conversations too ancient and too loose and casual.
“ (4) The proof was not such as to leave no reasonable doubt that the contract as pleaded was in fact made and that full performance has been had.
“(5) The work relied upon as constituting performance is not referable solely to the alleged contract sought to be enforced, but might be referable to some other cause.
“(6) The rent received by plaintiff will more than offset any sums paid out by her in the support, maintenance and care of her father and mother; so no fraud will be worked on plaintiff by refusing to enforce the alleged contract.
“(7) The proof, at best, shows a mere disposition or intention to devise by will as a reward for services already performed and money already advanced, and does not show a contract to devise made before the acts of performance relied upon were had.”

I. By reading this assignment of errors, it will be seen by comparing it with the general rule announced by this court, in the case of Walker v. Bohannan, 243 Mo. 119, 1. c. 135, regarding .the requirements of the allegations and proof in such cases, that counsel for appellant have predicated their assignment upon that rule, simply negativing the requirements stated therein.

Before considering this assignment of errors we will dispose of a general objection urged by counsel against the correctness of the decree, and that is, that, “the proof to sustain the alleged contract is based solely upon the evidence of Fountain K. Thompson, a brother of the plaintiff, ’ and, therefore, the evidence is insufficient to sustain the decree.

If we correctly understand this contention if challenges the sufficiency of the strength of the testimony of any one witness to support a judgment or decree in a case of this character regardless of his intelligence, character and standing in the community for honesty, truth and veracity.

Even if this insistence was based upon undisputed facts (which it is not, for he is strongly corroborated by almost every physical and undisputed fact in the case, which facts are many, as will be presently noted), we would he unable to lend our concurrence thereto, for the simple reason that the weight and convincing character of testimony does not depend so much upon the number of witnesses who testify in a cause, but more upon the intelligence, honesty and veracity of those who give evidence in a cause.

This rule has been so long and so firmly established in our system of jurisprudence, it would be more than a useless waste of time and energy to cite authority in support thereof.

We, therefore, rule this insistence against appellant.

II. We now approach the main proposition involved in this case for determination, and that is, was the evidence introduced sufficient to support the findings and the decree herein made and rendered in favor of the respondent, if tested by the following rule announced by this court in the case of Walker v. Bohan-nan, supra, viz.1?

“With the acquired experience the courts had gained before the passage of the orig-inai statutes of frauds and perjuries, .. . . ,, they were slow to engraft thereon any exception to the iron-clad rule 'of the statute. Later, however, it became apparent to courts of conscience that frauds were being perpetrated under the strict letter of the statute.

“To obviate these frauds the exceptions to the statute here invoked were adopted by courts of equity, but not without well-defined rules of procedure — rules, which like the statute itself, would be a safeguard as against the perpetration of frauds.

“The rules cover many phases, i. e.: (1) The alleged oral contract must be clear, explicit and definite; (2) it must be proven as pleaded; (3) such contract cannot be established by conversations either too ancient on the one hand, or too loose or casual upon the other; (4) the alleged oral contract must itself be fair and not unconscionable; (5) the proof of the contract as pleaded must be such as to leave no reasonable doubt in the mind of the chancellor that the contract as alleged was in fact made and that the full performance, so far as lies in the hands of the parties to perform, has been had; (6) the work constituting performance must be such as is referable solely to the contract sought to be enforced, and not such as might be reasonably referable to some other and different contract; (7) the contract must be one based upon an adequate and legal consideration so that its performance upon the one band but not upon the other would bespeak an unconscionable advantage and wrong, demanding in good conscience relief in equity; and (8) proof of mere disposition to devise by will or convey by deed by way of gift, or as a reward for services, is not sufficient, but- there must be shown a real contract to devise by will or convey by deed, made before the acts of performance relied upon were had. ' ’

Speaking of this rule generally, I wish to state that I have never indorsed it in the full sense in which it is there stated, but my views regarding it are fully stated in my dissenting opinion., filed in the case of Collins v. Harrell, 219 Mo. 279, 1. c. 311 to 343.

Since, however, the facts of this case are practically undisputed, we will have no necessity to attack the stringency and rigidity of that rule.

The undisputed facts are, that Nathan Thompson, about the year 1869, owned a small farm of forty acres of land situate in Livingston county, upon which he resided with his family, composed of himself, wife and eight children, five boys and three daughtérs, one of whom died without issue.

Prior to 1882 all the sons had married and moved away, leaving the father and mother and the two daughters at home. In the meantime both the father and mother had greatly declined in health, and were,on that account, unable to make a living, and the rent of the farm was insufficient for that purpose.

Under those circumstances it became apparent to all that the father and mother would have to make some arrangement for their support and maintenance during their declining years. The sons were all married and had departed the parental roof. Sophia had been married and divorced, but was staying temporarily at the home of her father and mother, assisting in the performance of the household duties; and Harriett was and had, for several years, been teaching school, living, however, with the father and mother, and assisted in doing the work about the house of nights and mornings, and' had been contributing to the support of the family out of her salary as teacher.

While Harriett and Sophia were not competent witnesses to testify as to the contract, yet one of their brothers, Fountain K. Thompson, and a brother of the appellant, testified, in substance, that some time between 1884 and 1886, Nathan Thompson, recognizing his. enfeebled and helpless condition, made a. contract with his two daughters, by which he agreed that if they would take care of and support him and their mother as long as they lived, stay with and look after them and provide them with a home on said farm during said time, pay his debts, keep up the place and furnish them with medicines and medical attentions, he would will them the land in question. Also that Sophia was to stay with, them all the time and devote her time' and attention to them, when necessary, and look after the household duties. Harriett, likewise, was to reside at home with the parents, hut to teach school, and while at home, she was to assist in caring for them and the' household, as well as to furnish the means for -their support and! maintenance, pay the debts of the father, keep the house and improvements in repair and pay the taxes, etc. That she was to have the rents of the farm and out of that and her salary she was to meet all of said obligations, in consideration of which the father agreed to will them the forty acres of land in controversy.

Fountain K. Thompson also testified that Harriett and Sophia agreed with their father to do all of said things in consideration that he would will them said land.

■ The evidence is uncontradicted that they faithfully and religiously did and performed all of the matters and things required of them by the terms of said alleged contract. Even the defendant concedes that, hut contends that all of those things were done by them as members of the family and for love and devotion to their father and mother, and not in pursuance to a contract imposing those duties and obligations upon them.

It is also.undisputed that the father, either in pursuance to that contract of for some other reason not disclosed by this record, did, as a matter of fact, will said forty acres of land to Harriett and Sophia, but through the mistake or inadvertence of the scrivener who drew the will, omitted to name therein any of the other children, and -in consequence thereof the will was, under our Statutes of Wills, insufficient to convey the entire interest of the father in and to the land to said daughters, leaving the other children as preter-mitted heirs.

Recognizing the justice of respondents’ claim to the land, all of the children except the appellant conveyed by quitclaim deed tlieir respective interests in and to said land to respondents; but the appellant, Elliott W. Thompson, at all times denied their right to his one-seventh interest therein. ' As far back .as August 18901, shortly after the death- of his mother, he brought a suit against all of the children to partition the land, whereupon Harriett, one of the defendants in that suit, filed a motion for costs, stating therein that the plaintiff there, and the appellant here, had no interest in said land and that he was insolvent. The court sustained that motion, and the plaintiff having failed to secure the costs within the time fixed by the court, the court dismissed the suit at the January term, 1900, of the court; since which time, appellant has not molested the possession of respondents or made any legal claim thereto.

After the dismissal -of that suit, the respondents have been in the exclusive, continuous, notorious and adverse possession of the land, claiming title thereto against the world, and especially against the appellant, and long prior to that date for that matter.

During all of these years the respondent has been receiving the entire issues, rents and profits .of the land, paid the taxes thereon and has built a house and made other valuable improvements thereon, costing $2500, all of which was well known to the appellant.

Upon this evidence and state of the record, the circuit court found the issues for the respondent, and' entered judgment quieting the title to the land in their favor, and' against the appellant.

There has been so much said and written by this court upon this question that I feel it would be useless to prolong this opinion by adding anything thereto; and will therefore curtail the same by stating that, in our opinion, the findings and decree of the court, quieting the title in favor of the respondents were correct, and are fully supported by the following cases: Button v. Hayden, 62 Mo. 101; Hiatt v. Williams, 72 Mo. 214; Gupton v. Gupton, 47 Mo. 37; Healey v. Simpson, 113 Mo. 340, 1. c. 346; Hall v. Harris, 145 Mo. 614; Koch v. Hebel, 32 Mo. App. 103; Sharkey v. McDermott, 91 Mo. 647; Fuchs v. Fuchs, 48 Mo. App. 18; Carney v. Carney, 95 Mo. 353; Berg v. Moreau, 199 Mo. 416; Nowack v. Berger, 133 Mo. 24; Russell v. Sharp, 192 Mo. 270; Walker v. Bohannan, 243 Mo. 119; Forrister v. Sullivan, 231 Mo. 345; Collins v. Harrell, 219 Mo. 279; Wales v. Holden, 209 Mo. 552; Kirk v. Middlebrook, 201 Mo. 245; Oliver v. Johnson, 238 Mo. 1. c. 376; Kinney v. Murray, 170 Mo. 1. c. 700.

If, perckanee, any member of tke bar wishes to-read tke views of tkis court regarding tkis class of cases, ke will find tkem fully expressed in tke cases cited.

III. Appellant complains of tke action of tke trial court in permitting Harriett and Sophia to testify to certain matters which transpired subsequent to tke death of their father.

Since tkis testimony was admitted upon other theories of respondents’ case and not considered, by the trial court in its determination of this branch of tke case, which alone involves tke contract in question, we deem it unnecessary to pass upon that testimony or on tke legal propositions predicated thereon, for in no event could a ruling thereon affect tke conclusions reached in paragraphs one and two of tke opinion.

Finding no error in tke'record, tke judgment of tke circuit court is affirmed.


author: CRAVES, J.

text:
    ROSE F. RYAN v. CHARLES F. STROP et al., Appellants.
    Division One,
    December 6, 1913.
    1. DURESS: Note and' Deed of Trust: Signed by Wife to Stop Prosecution of Husband. The husband of plaintiff, who was the owner of a home, was short in his accounts with his company in the sum of $2500. He telephoned her to come to his office, that he wanted to see her on some business. There she met an attorney with a note for the amount and a deed of trust on her home to secure the payment of the same, already drawn up, and the agent of the company. After she had read over the papers and found they included a deed of trust on her home, she refused to sign them, whereupon the agent told her that her husband would, be prosecuted if she did not, and being in fear of such prosecution she signed them. Held, a clear case of duress, and sufficient to authorize a cancellation of the note and deed of trust.
    2. -: Threats. Threats by a company, with which plaintiff’s husband had become short in his accounts, to send him to the penitentiary if she-did not sign a deed of trust on her home to secure the amount of the shortage, are sufficient to deprive a wife of her free will, and to avoid the instrument.
    3. EQUITY CASE: Deference to 'Chancellor. Where the testimony is oral and, as it appears in the record, is about equally balanced, the appellate court will defer to tlie finding of the chancellor on the facts, since he has the witnesses before him and is in a better situation to estimate their credibility.
    Appeal from Buchanan Circuit Court. — Hon. William D. Rusk, Judge.
    Affirmed.

      W. B. Norris for appellants.
    (1) The only legal standard of duress- seems to-be that the person so acted upon by the threats must be bereft of that quality of mind essential to the making of a contract, and the condition of mind must be such as to destroy the will. Woods v. Tel. Co., 223 Mo. 558. (2) Free agency and the will must be destroyed by the threats of imprisonment. One who signs a deed believing- at the time that he is not signing a valid deed, because of the action of the other party in threatening a criminal prosecution, cannot be said to be in that state of mind in which his will power has been destroyed, and that his action in so executing such a deed is not in fact his own, but the action of the other-party. Pie is simply making a bluff to counteract the-bluff of the other party. He understands what he is doing and does not need the protection of a court of equity. (3) By the examination of the plaintiff’s testimony in this case it will be seen that her fear for her husband’s welfare, and the coercion used upon her in. signing the notes and deed of trust, occurred to her after four years had elapsed. If her testimony betaken as true, she was the master at the time of the-execution of the notes and deed of trust, and not subservient to the will of the representative of Adam Sehaaf. (4) The testimony of Mr. Mytton, P. R.. Rucker -and Mr. Parkinson is positive with no contradictions, that the notes and deed of trust were executed without any threats or duress on the part of Adam Sehaaf.

      John 8. Boyer and Broaddus & Grow for respondent.
    This conrt will defer to the finding of the trial conrt where the oral evidence is so evenly balanced. Huffman v. Huffman, 217 Mo. 182; Railroad v. Yankee, 140 Mo. App. 274. ■
   CRAVES, J.

Plaintiff brings suit to cancel certain notes and a deed of trust securing the same on the ground that her signatures thereto were obtained by duress. The petition perhaps goes a little further than the question of duress. Among other matters it charges:

“Plaintiff states that said notes and the deed of trust pretending to secure the payment of same was signed by her, solely by reason of her fear caused by the threats made by the agents, servants and employees of Adam Schaaf, and solely on account of the fear, coercion and intimidation caused thereby, although said notes were signed without any consideration moving from said Adam Schaaf to this plaintiff, or to her husband, as said notes were given for an existing indebtedness and obligation, without any consideration whatever moving to either plaintiff or her husband. ’ ’

The suit was originally brought against residents of Missouri (individuals and corporations) but later, Adam Schaaf, a corporation of Illinois engaged in the manufacture of pianos, filed an answer alleging that since the filing of plaintiff’s suit it had become the sole owner and possessor of said notes and deed of trust, and admitting that plaintiff was the owner oi the real estate described in the deed of trust, and further alleging that the deed of trust was a lien thereon. The answer after these admissions and allegations then denied the other matter averred in plaintiff’s petition. By reply the plaintiff charged that the notes and deed of trust grew out of business transacted by Adam Schaaf, a foreign corporation, whilst it was doing business in Missouri, and whilst it had no license or other authority to do business in Missouri, and that by reason of this fact such corporation had no standing in the courts of this State. The resident defendants were dismissed from the case and the cause proceeded in battle royal between plaintiff and Adam Schaaf. Plaintiff had judgment as in her petition prayed, and the defendant alleging itself to be aggrieved by such judgment has sought a review of the same by an appeal to this court. The evidence can best be detailed in connection with the points made.

I. The respondent in herreply charges that Adam Schaaf, a foreign corporation doing business in this State without license, at the time of the transaction here in question, has no standing in the courts of our State. In the view we have upon other matters in this record, the intricate question of fact and law pertaining to this proposition will be left to a case wherein such matter is the sole turning point.

II. Under the facts in evidence, J. A. Ryan, husband of plaintiff Rose P. Ryan, was the manager or agent of the defendant, Adam Schaaf, for the sale of pianos, manufactured by Adam Schaaf, in the State of Missouri, Kansas and Nebraska, with a business office in the city of St. Joseph, Missouri. For the purpose of the point now in hand it is immaterial whether J. A. Ryan was the manager of Schaaf in Schaaf’s office in St. Joseph, or in an office or place of business of his own. Whatever the relation was it began in September, 1903. Ryan sold pianos and was to account for the proceeds of the sales. After several years work it was discovered that Ryan was short in his accounts in sums aggregating nearly $2500. An agent for Adam Schaaf called upon him, and he finally admitted his shortage, but bad no money with which to pay. This was in September, 1906, or about three years after Ryan began the sale of pianos for Schaaf. The matter was closed on September 12, 1906, by Ryan and his wife signing up notes aggregating such sum, and securing the payment thereof by a deed of trust on the home, which home was the property of the wife.

Plaintiff and her husband testified that Rucker, the agent of Adam Schaaf, with Mr. Mytton, the attorney for Adam Schaaf, came to the office of J. A. Ryan, with the notes and deed of trust already prepared, and that Ryan then ’phoned his wife to come down, that he wanted to see her on some business; that when she came Mr. Mytton told her that there were some papers for her to sign, and that after she read them over and found that they included a deed of trust on her home, she refused to sign them; that at this juncture, Ruck-er, the agent of Adam Schaaf, told her that her husband would be prosecuted if she did not, and that after crying awhile and being in fear of such a prosecution, she finally signed the notes and deed of trust. The evidence of Ryan was further to the effect that Rucker told Tiim that the matter would have to be fixed up or he would be prosecuted. The evidence for the plaintiff made a clear case of duress. [Lacks v. Butler County Bank, 204 Mo. l. c. 478.]

If threats were made to Mrs. Ryan, as by the testimony of her and her husband shown, then such threats were sufficient to deprive her of ber own'free will in tbe matter and the'instruments executed under such circumstances would be void. There are not many wives whose will power would not be destroyed by open threats to send the husband to the penitentiary. If this were the only side to the case it would be one of easy disposition. For the defendants Mr. Mytton, Mr. Parkinson and the agent, Rucker, testified that the notes and deed of trust were executed in Mr. Mytton’s office and not at the Ryan store, and that there were no threats made by either of the parties as against Ryan. It should be stated that Mr. Parkinson did not claim to have been present all the time. Mrs. Ryan says that she never would have put a deed of trust upon her home, but for these threats, and the chancellor nisi has found her version of the transaction to be the proper one. Women, who own property in their own right, are not prone to use it in the payment of the husband’s debts, but this is but a circumstance corroborating the views of the lower court. In this court we are empowered to review the whole case and write anew the judgment, and in many cases we go that far, notwithstanding the usual deference had for the judgment of the chancellor below.- In this case the evidence, the facts and circumstances in evidence are pretty evenly balanced, and the trial court had the advantage of facing the witnesses and hearing their respective stories. In such ease we have often said that we would give heed to the views of the trial chancellor. We feel that we should so do in this cáse. Let the judgment be affirmed.

All concur.


text:
    CLAUDE HARDWICKE v. RICHARD BARNES, Appellant.
    Division One,
    December 6, 1913.
    APPELLATE JURISDICTION: Removal of Mortgage as Cloud on Title: Extension of Note: Release of Surety. A suit to have a certain deed to a tract of land, made by the signer of the note, who was the owner of the land, declared to be a mortgage, on the ground that said signer was a surety, and the note was not paid at maturity, and the payee extended the time of payment, in consequence of which the said surety was released from further liability thereon, and the deed or mortgage was in law satisfied, and praying that it be removed as a cloud upon the title of plaintiff, who claims under a subsequent deed of trust made by the said surety, does not involve title to real estate. The determination of the only question involved, namely, whether the mortgage was satisfied by reason of the alleged extension of the time of payment without the consent of the surety, does not involve the title to the land conveyed by the deed.
    .Appeal from Platte Circuit Court. — Hon. Alonzo D. Humes, Judge.
    Retransferred to Kansas City Court of Appeals.

      Fyke & Snider for appellant.

      Guy H. Park for respondent.
   WOODSON, P. J.

This suit was instituted by the plaintiff in the circuit court of Clay county against the defendant, to have a certain deed of trust declared satisfied and that the pretended lien thereof be removed as a cloud upon the title to a certain tract of land therein described.

A change of venue was taken and the cause was sent to the circuit court of Platte - county where a trial was had which resulted in a judgment in favor of the plaintiff,.cancelling the deed; and the defendant duly appealed the cause to the Kansas City Court of Appeals.

The latter court, I take it, of its own motion, transferred the cause to this court for the reason assigned, that title of real estate was involved therein, which deprived it of jurisdiction.

The facts of the case are few and undisputed.

On and prior to December 17, 1889, Henry P. Lin- • denman, was the owner of the tract of land mentioned; and on that date the Thornton Distilling & Milling Company, a corporation, of which Lindenman was the treasurer, was indebted to the defendant, Richard S. Barnes, in the sum of $7000, evidenced by a promissory note due eighteen months after date, bearing eight per cent interest, which was signed by said distilling company, by Henry P. Lindenman, treasurer, and others.

On said 17th day of December, in order to secure the payment of said note, Lindenman executed to defendant a deed conveying to him said real estate, which provided upon its face that upon the payment of said note, the defendant was to reconvey said land to said Lindenman. The deed was duly filed for record on August 3, 1891.

Also on said 17th day of December the distilling company to further secure the payment of said note, executed to S. G. Sandusky, trustee, a deed of trust in which defendant was named as beneficiary, conveying to him certain other lands which belonged to said company, but not involved in this suit.

On January 28, 1891, Lindenman executed to Samuel Hardwicke, trustee, a deed of trust, wherein W. C. Lemon was named as the beneficiary, conveying the first tract mentioned, and the one claimed to be here involved, to secure seven promissory notes therein described, aggregating fourteen hundred dollars. Said deed was also duly filed for record a few days after its execution.

At the date of the institution of this suit and for some six years prior thereto, the defendant was in the possession of said land.

Samuel Hardwicke, the trustee in said deed of trust, died in the year 1895.

The petition charges that the notes mentioned in the second deed of trust were for value received, assigned and transferred (but the date not given) by said Lemon, and were then and had been for a number of years, owned by the plaintiff. That there was a balance of $2250 then due thereon.

The petition also charged that the defendant’s said note for $7000 had been satisfied; that the latter’s claim of right to the possession of said land was by virtue of said first deed of trust; that it constituted a cloud upon plaintiff’s title to said land, which he asked to have removed; and prayed that the deed from Linden-man to defendant be declared a mortgage and, as such, to have ceased to be of any force and effect, by reason of the said discharge of said Lindenman as security on said note, and by reason of the satisfaction of said note, and for such other relief as the court might deem meet and proper.

It is not claimed by plaintiff that the defendant’s note for $7000 had been fully paid; but his claim is that said note was not paid at maturity and that the defendant extended the time of the payment thereof, in consequence of which the securities thereon, including Lindenman, were released from further liability thereon, and that therefore the deed or mortgage executed by Lindenman to defendant conveying said land was satisfied.

There was evidence introduced pro and con upon those questions, but from the view we take of the case, it will not be. necessary to go into that.

From reading the statement of the case it is seen that there was no dispute as to Lindenman’s title to the land mentioned, nor was there any question as to the validity of the mortgage given there011 ^y bim, as security for the payment of the $7000 note. That being true, then the only question involved is whether or not the mortgage mentioned was satisfied by reason of the alleged extension of the time of payment without the consent of the securities.

The decision of that question one way or the other would in no manner involve the title to the real estate mentioned.

The same principle was involved in- the case of Vandeventer v. Bank, 232 Mo. 618.

It was there held that where the plaintiff owned the land and the note for $200 was secured by a valid deed of trust thereon, and the only issues in the case were whether or not the note had been assigned to defendant and whether or not it had been paid before the assignment, title to the real estate conveyed by the deed of trust was not involved; and that, therefore, this court had no jurisdiction of the cause.

So in the case at bar, the only issue in the case is, were the sureties on the $7000 note released therefrom by the said extension of the time of its payment without their consent?

The decision of that question one way or the other does not involve the title to the land mentioned, and this court, therefore, has no jurisdiction of the case, since there is but a small sum due and unpaid on said note.

This court having no jurisdiction of the cause, the case is retransferred to the Kansas City Court of Appeals to be disposed of according to law.

All concur.