Waddle v. Frazier

FEEEISS, J.

— This is a suit to partition forty acres of land. The original parties are the collateral heirs of Malinda Frazier, who died in 1907. This forty acres was conveyed to said Malinda. by her father in 1860 — to her “and to the heirs of her body.” She died without issue. The record shows that in April, 1860, James Lee and wife, by general warranty deed, conveyed to William Frazier, the appellant, the southwest quarter of the northeast quarter of section twenty, township sixty-two, range nineteen, in Sullivan county, for a recited consideration of three hundred dollars. In May, 1860, the said James Lee and wife, by general warranty deed, conveyed the adjoining forty, namely, the southeast quarter of the said northeast quarter, the same being the land in controversy, to their daughter, Malinda. Frazier, wife of said William, “and to the heirs of her body,” for a recited consideration of four hundred dollars. In February, 1862, William Frazier and wife, by general warranty deed, conveyed the above described two tracts, eighty acres in all, to James M. Frazier, brother of said William. In July, 1866, said William Frazier purchased the aforesaid eighty acres from the estate and widow of said James M. Frazier, and received proper conveyance thereof. William Frazier went into possession of this eighty acres in 1866, and occupied same as a home for himself and wife until her death in 1907. After her death, William Frazier continued in the possession of the land, and held such possession until this present suit for partition of the forty acres conveyed *398 by James Lee to Malinda was instituted by the brothers and sisters of Malinda Frazier, in February, 1908, the said Malinda having died without issue.

The petition in this case is based upon the theory that the deed from James Lee to Malinda Frazier and the heirs of her body, made in 1860, gave her, under the statute then in force, a life estate, with remainder to her heirs, in default of bodily issue; that the persons seeking partition were her heirs; that the sale of the land by William and Malinda Frazier, in .1862, to James M. Frazier, and the subsequent conveyance from his estate to William Frazier • carried only the life estate of Malinda, and that consequently, upon her death, in 1907, the title passed to her heirs. William Frazier, upon his request, was made a party defendant in this partition suit. He filed an answer in which he claims to be the owner of the land, that he bought and paid for it with his own money, and that his wife held the title as his trustee. He also pleads adverse possession, under the deeds from the estate of James M. Frazier, since July 1866. He further says in his answer that if the said Malinda had any right or interest in the land, he, as her husband, would, under the statute, be entitled to “one-half of all real estate which her heirs would inherit.” He prays that all rights which the parties seeking partition may seem to have, “if any they have,” be divested out of them and vested in him; that he be declared the absolute owner; that plaintiff’s petition be dismissed, and for “such other and further orders, judgments and decrees herein as to the court may seem right and proper.” A reply was filed, alleging that William Frazier took the deeds from James M. Frazier’s estate with full knowledge of the condition of the title.

When the case came to trial, plaintiffs proved the conveyances as alleged, the death of Malinda' Frazier without issue, and the relationship of the *399 parties asking partition. Several witnesses were examined orally upon the issue raised by the defendant as to his having bought the land with his own money, and as to his having claimed it as his.

The court rendered judgment which, in part, is as follows:

“Now, to-wit, on the 9th day of January, 1909, this cause having béen heretofore heard by the court, comes on for final determination; and the court, having been fully advised in the premises, and as to the evidence adduced on the part of the defendants, as well as on the part of plaintiffs, being duly advised as to such evidence and the facts, finds that the impleading defendant, William Frazier, has no right, title, claim or interest in and to the southeast fourth of the northeast quarter of section twenty, township sixty-two, of range nineteen, Sullivan county, Missouri, sought to be partitioned herein; and the court finds that said land was conveyed to Malinda Frazier, wife of said William Frazier, and her bodily heirs; and although subsequently conveyed to one James M. Frazier by warranty deed, the effect thereof was to vest in the- grantee a life estate only in the land in controversy; that although the defendant, William Frazier, subsequently purchased said land from the administratrix of the estate of James M. Frazier, deceased, he made such purchase with full knowledge and notice of the condition of the title, that a life estate only could be sold or purchased, and that although he remained in the rightful possession of such land, as a purchaser of his wife’s life estate, until the time of her death, to-wit, on the 15th day of September, 1907, he -is not now entitled to the possession and control thereof; but on the contrary, the said Malinda Frazier having died without issue of her body, the plaintiffs and defendants, other than said William Frazier, as her collateral heirs, are the owners of the legal title, and entitled to the posses *400 sion of said land, which is hereby declared to be vested in them.”

The judgment further finds that the original parties to the partition suit own the land in fee; finds their respective interests; that the land is not susceptible of division in kind, and orders it sold for cash, and the proceeds divided among the parties entitled thereto. William Frazier appeals.

I. It is conceded by appellant that, by its terms, the'deed from James Lee to Malinda Frazier and the heirs of her body gave her a life estate, with remainder to her heirs in the event she should die without issue, and. this by virtue of Sec. 5, Chap. 32, R. S. 1855, which reads as follows:

“Sec. 5. That, from and after the passage of this act, where any conveyance or devise shall be made whereby the grantee or devisee shall become seized, in law or equity, of such estate,, in any lands or tenements as, under the statute of the thirteenth of Edward the First, (called the Statute of Entails) would have been held an estate in fee tail, every such conveyance or devise shall vest an estate for life only in such grantee or devisee, who shall possess and have the same power over, and right in, such premises, and no other, as a tenant for life thereof would have by law; and, upon the death of such grantee or devisee, the said lands and tenements shall go, and be vested in the children of such grantee or devisee, equally to be divided between them as tenants in common, in fee; and if there be only one child, then to that one, in fee; and if any child be dead, the part which would have come to him or her, shall go to his or her issue; and if there be no issue, then to his or her heirs.”

It is further conceded in the answer of the- appellant that Malinda died without issue of her body, and that the parties seeking partition are her heirs. Ap *401 pellant contends, however, that as her husband he is entitled, as heir of his wife, to one-half of the land under Sec. 350, R. S. 1909, which reads thus:

“Sec. 350. When a wife shall die without any child or other descendants in being capable of inheriting, her widower shall be entitled to one-half of the real and personal estate belonging to the wife at the time of her death, absolutely, subject to the payment of the wife’s debts.”

Obviously, the husband could take no interest directly under this section, in land in which his wife owned a life estate only. Nor could he claim heirship under the law of descent (Sec. 332, R. S. 1909), his wife having left'brothers and sisters surviving her. The claim of heirship on the part of appellant must, therefore, rest on the proposition that section 350, supra, constitutes him an heir of his wife so as to bring him within the final clause of the law in force in 1855, and quoted above. We think this proposition unsound. Section 350, giving the husband an interest in his wife’s real estate, was enacted to equalize the rights of widows and widowers. That which the husband takes under this section is in the nature of dower. His claims are limited to property belonging to her at her death. It does not make him his wife’s heir in the full sense of that term. The term “heirs,” in its accepted legal signification, means kindred who by the law of descent are entitled to an interest in real estate (Ruggles v. Randall, 70 Conn. 44 ; Dodge’s Appeal, 106 Pa. St. 216; Jarboe v. Hey, 122 Mo. 1 c. 354); and, under the authorities, excludes the husband or wife, where there is nothing in the connection in which it is used to indicate otherwise. [Dodge’s Appeal, supra; Fabens v: Fabens, 141 Mass. 395 ; Jarboe v. Hey, supra; Clarkson v. Clarkson, 125 Mo. 381 ; 15 Am. & Eng. Ency. Law (2 Ed.), 329.] The word “heir” has been construed in many cases to include *402 the wife or husband where personal property was involved, and the intent was manifest, particularly in provisions in benefit certificates; but with regard to real estate, the rule stated above is uniform. There is certainly nothing in the law quoted above from the Revision of 1855 to indicate that this rule does not apply, and there is nothing in Sec. 350, R. S. 1909, to extend the rights of the husband beyond the plain limitations and purposes of that section.

II. Appellant asserts this proposition in his brief: .

“To maintain partition, the parties seeking it must, have either actual or constructive possession. Partition is not a suit to try the title or to settle the right to a disputed possession. If the defendant, Wm. Frazier, was in the actual possession, claiming the land sought to be partitioned adversely to plaintiffs and his -codefendants, partition cannot be maintained. ’ ’

Appellant cites several cases to the effect that partition cannot be rendered in a cause where a party claims adversely to all those seeking partition,- and that in such case the right to possession must be first determined by an action in ejectment. [Chamberlain v. Waples, 193 Mo. 96 , and cases cited.] The above rule is based upon the proposition that in partition the. court-does not try title and right-to possession, and further, upon the practical difficulty in enforcing a decree of partition against one in adverse, exclusive possession. Does this rule apply when the adverse outside claimant voluntarily comes into the partition suit as a party, sets up an equitable title to the land and prays ,an adjudication- thereon, and prays for such other and further orders and decrees as to thé court may seem proper? In this case the appellant asserted equitable ownership of the land, and asked a court of equity to decide between his rights *403 and those of the parties asking partition. The court tried the issue thus presented, and decided it against appellant, and adjudged the title and right to possession to be in the claimants -seeking partition. The court, as a court of equity, took jurisdiction, as requested by appellant, of the issue presented by him. The general rule applicable to such a situation is this: When a court of equity has acquired jurisdiction of a cause for one purpose, it will proceed to do complete justice between the parties, and determine all matters in issue, even if this involves adjudicating matters of law. [Dameron v. Jameson, 71 Mo. 97 ; Real Estate Savings Inst. v. Collonious, 63 Mo. 290 ; Paris v. Haley, 61 Mo. l. c. 462; Hagan v. Bank, 182 Mo. l. c. 342.]

This doctrine has been applied by this court in modification of the rule above stated applicable to partition. In Rozier v. Griffith, 31 Mo. 171 , this court said: “The fact that the defendant is in possession of the premises, claiming to hold them adversely to the plaintiff, is in general a sufficient ground for denying a partition in a court of law; but when the question arises upon an equitable title set up by either of the parties, the reason of the rule fails. WTien the questions are such as belong to a court of equity, there can be no reason for suspending the proceedings short of complete justice between the parties. [Cox v. Smith, 4 Ch. 275; Hosford v. Mervin, 5 Barb. 62 .]”

In Dameron v. Jameson, supra, this court says: “It is urged by defendant that partition will not lie when defendant is in adverse possession of the premises, of which partition is asked. This doctrine, in cases to which it is applicable, is well settled, but no case can be found in our reports where the principle was applied in a proceeding to establish an equitable title, and also for partition. When the plaintiff asks for partition, and the defendant is in the adverse possession of the property, the courts refuse to par *404 tition the land between them, until plaintiff establishes his title, and a suit in ejectment is the proper proceeding for that purpose; but where, as here, the plaintiff has an equitable title, and asks the aid of the court of equity to establish it, if the court ascertain that he has an. interest, and what that interest is, the doctrine that partition cannot be had when the defendant is in the adverse possession of the premises, does not apply. The decree establishes plaintiff’s title, and under it the court may put him in possession, and a suit in ejectment becomes necessary [unnecessary.] The court, having acquired jurisdiction of the cause, may proceed to determine the whole controversy by decreeing a partition of the premises. [Rozier v. Griffith, 31 Mo. 171 .]”

To the same effect is Holloway v. Holloway, 97 Mo. l. c. 643-4.

Appellant invoked the judgment of the court upon his claim to equitable ownership of the land. The judgment deereed the title to be in the other parties, and that they were entitled to possession.

It is obvious that appellant’s claim of title by adverse possession is without foundation. The deed to him from the administratrix of James M. Frazier conveyed only the life estate of Malinda Frazier, as that was the only estate conveyed to James M. Frazier by the deed from Malinda and William Frazier. Neither Malinda nor any grantee of her life estate could claim adversely to the remaindermen; hence, the statute could not begin to run in favor of appellant until the death of Malinda, in 1907. It follows that appellant, at the time of the institution of this suit, had neither title nor the right to possession. [Charles v. Pickens, 214 Mo. l. c. 215; Dugan v. Follett, 100 Ill. 589 ; Colvin v. Hauenstein, 110 Mo. 575 ; Scott v. Colson, 156 Ala. 450 .] The court below, having acquired jurisdiction of all the issues in the cause, rendered judgment on this issue of adverse possession, and *405 decreed the title and right to possession to be in the collateral heirs of Malinda Frazier, parties to the partition suit. It thus became unnecessary to resort to ejectment to try the question of title by adverse possession. [Coberly v. Coberly, 189 Mo. 1 .]

III. Appellant, in his answer, alleged that he bought and paid for the land conveyed to his wife, Malinda, and that she held the title in trust for him. Evidence was introduced upon this issue by both sides. Upon the testimony, the court found against appellant. James Lee, the father of Malinda, conveyed forty acres to "William Frazier, April 13, 1860. In May following, James Lee conveyed' the forty acres in controversy to Malinda Frazier. The two tracts are adjoining, and together make the eighty acres which William Frazier and his wife occupied as a home, except during the interval from 1862 to 1866 when the eighty acres were in possession of James M. Frazier under deed from William and wife. Appellant claims that he bought the eighty acres at one time from James Lee. No explanation is given for the conveyance of one forty to his wife. One witness stated that he understood that the forty was given to her by her father for a home. The language of the deed to her “and to the heirs of her body” is consistent with this, and tends to negative the claim to a resulting trust. We deem it unnecessary to detail the oral testimony. It came from friends and neighbors, who testified, pro and con, to fragments of conversations, and to remarks by James Lee, Malinda and William Frazier, some of them as far back as fifty years. One witness, fifty-nine years old, testified to a conversation heard by him in 1859, before he was ten years old. The evidence at best is vague and fragmentary. It fails to measnre up to the rule declared by this court in King v. Isley, 116 Mo. 155 , where, speaking of the quantum of evidence *406 essential to establish a resulting trust, we say: “ ‘The rule in this court is settled by a uniform line of decisions that parol testimony, in order to accomplish such an object and secure such an end, must be clear, strong and unequivocal; so definite and positive as to leave no room for doubt in the mind of the chancellor as to the existence of such a trust.’ [Allen v. Logan, 96 Mo. 591 .] ‘These resulting trusts must not be declared upon doubtful evidence, or even upon a mere preponderance of evidence. . . . There should be no room for a reasonable doubt as to the facts relied upon to establish the trust.’ [Adams v. Burns, 96 Mo. 361 .]”

We are not bound by the finding of the chancellor, but we may properly defer in some degree to his superior opportunity to weigh the testimony. Our views upon testimony of this character in such a case as this are expressed at length in Williams v. Keef, 241 Mo. 366 , and need not be further extended here.

We think the. judgment is sustained by the record. We find no reversible error. The judgment, therefore, is affirmed.

Brown, P. J'., and Kennish, J., concur.