Davis v. Evans

Barclay, J. — It may be well at thé outset to refer for a moment to the pleadings which appear; to simplify [168] some of the questions discussed by the learned counsel in their briefs. Defendants’ answer states, among other things, that in 1860 the deed, purporting to convey the land in controversy, was executed and delivered to Mr. Davis, but it is charged that the same was in trust for the use and benefit of Mr. Williams “who paid the consideration therefor,” and that the only interest of Mr. Davis in the property was as such trustee. The effect of these allegations is an admission that-Mr. Davis acquired the legal title to the property, but merely held it subject to a resulting trust in favor of Mr. Williams. Under the present law of Missouri actual seizin of land by the husband is not essential to support a claim of dower by his widow. R. S. 1889, sec. 4535. Furthermore, she may now be endowed of interests in realty whereof any other person was seized to the use of her husband during his life as well as of strict legal estates. R. S. 1889, sec. 4513’. Such was the law governing this controversy, in force when Mr. Davis died. Burgess v. Bowles, 99 Mo. 543. Another statutory provision bearing on this appeal renders the execution sale to Williams during the coverture ineffectual to pass the dower interest of plaintiff in. the land without her statutory assent ( R. S. 1889, sec. 4525), if Mr. Davis then had such an estate therein as-would support the right of dower. Applying these rules to the case made by the pleadings and evidence, it is clear that plaintiff is entitled to be endowed of the land in controversy unless Mr. Davis-in fact acquired and held the legal title upon a trust-resulting in favor of Mr. Williams by reason of the payment of the consideration by the latter as alleged in the-answer. In that event she could not properly claim to-be endowed. But defendants’ own evidence, if regarded as admissible, does not sustain the allegations of the answer in [169] this regard to their full extent. It tends to show that Mr. Davis, in making the purchase at the partition sale, was acting for himself and Mr. Williams jointly; that each paid half of the first cash payment and joined in equal notes for the postponed installments. It would seem that Mr. Davis did not meet his portion of these notes, and that they were discharged entirely by Mr. Williams. Whether this gave him or defendants { who represent the interests of Mr. Williams) a standing in equity to be subrogated to the rights and remedies of the original vendor against the property, with regard to the purchase money, this record does not require us to decide, for no such position is taken by defendants or asserted in their pleading. Certain is it, however, that the evidence does not sustain the contention of the answer that Mr. Davis purchased solely for Mr. William's. It shows the very contrary, and that Mr. Davis had, with the legal title (conceded by defendants in their pleading), some beneficial interest or equity in the property. But it will not be necessary to determine its exact nature, for we áre agreed that the admissions referred to should not have been received, or be considered in evidence. They were made in 1868, long after Mr. Davis had parted with all personal interest, right or estate in the subject of the suit. It is, furthermore, admitted that he was never in actual possession of the property in controversy. So that, when the declarations against his supposed interest were thrown out, he had no seizin in fact, nor any constructive possession or estate in law or equity in the land, according to defendants’ own theory of the case. In this situation his declarations were inadmissible to fix an equity upon the legal titles or interests involved in this litigation. Steward v. Thomas (1864), 35 Mo. 202; Weinrich v. Porter (1871), 47 Mo. 293. The judgment should be reversed and the cause remanded, all of the judges concurring.