Poteet v. Daniel

BROADDUS, P. J.

Since the appeal herein, the plaintiff died and the cause was revived in the name of D. B. Morris, public administrator. The facts are as follows: On and prior to the 4th day of August, 1897, Robert Poteet, the husband of Ellen Poteet, who instituted this suit, was the owner of a certain tract of land lying and being in DeKalb county, Missouri, which he conveyed, his wife Ellen joining him therein, to Joshua M. Daniel and Frank Dildine. The conveyance is made subject to a certain deed of trust executed to Bartlett Bros, and, “Also subject to the life estate of the grantors.” In about eight months after the date of said conveyance, Robert Poteet died. The said Dildine conveyed his interest in the land to his co-grantee, Daniel, the defendant, who has occupied and cultivated the same and received all the benefits therefrom for six years prior to the beginning of this suit. The purpose of the suit was to compel the defendant to pay to the said Ellen the value of the rentals for said time.

Two defenses are pleaded to the plaintiff’s cause of action, viz.: First, that the land being the property of Robert, his wife Ellen had no interest in the same except the inchoate right Of dower. Second, that the deed by its terms fixed the consideration for the land in the sum of $4,500, and for an agreement and promise on the part of the grantees to provide homes for said Robert and Ellen and to furnish them with good, wholesome food and clothing during their respective lives, and at their deaths to provide for them respectable interment. The defendant claims that he provided said Robert and Ellen with a home and furnished them with the required food and clothing up to the date of said Robert’s decease, and furnished him with respectable interment. That he furnished the said Ellen with a home and the required clothing and food until January 4, 1905, at which time she voluntarily left his home and remained away therefrom. The defendant claims as a defense that the said Ellen was indebted to him in the sum of $266.65 for money advanced to her at different times and in the payment of her debts. There is also a count in defendant’s answer wherein he seeks reformation of the deed in question, but, as the cause was decided on other grounds, it is not necessary to give it further notice.

The defendant introduced no testimony whatever and at the close of plaintiff’s case offered a demurrer thereto, which the court overruled on the ground, as stated in the record, viz., “that the defendant went into the offset.” The court, however, found the verdict for defendant.

The plaintiff, however, in his argument and brief, assumes that the finding of the court is predicated upon the ground that the wife under the terms of the deed in controversy had no estate in the premises after the death of her husband. But how are we to know that such was the case? For aught we know, the court found that the offset pleaded in defendant’s answer counterbalanced the value of the use of the land. And we must assume, so far as the record goes, that the court in overruling the demurrer weighed the evidence and found for defendant on his offset. There was evidence as to the value of the use of the farm and evidence to sustain the offset. It was the duty of the court to weigh such evidence and its finding, like that of a jury, is binding upon this court.

Finding nothing in the record to justify a reversal, the cause is affirmed.

All concur.