McGehee v. Garringer

• Decision Date: 11 October 1920
• Citation: 224 S.W. 828,284 Mo. 465
• Parties: SARAH JANE McGEHEE et al., Appellants, v. FRANK GARRINGER, R. N. MOORE, et al. SARAH JANE McGEHEE et al., Appellants, v. DENNIE GARRINGER et al
• Court: Missouri Supreme Court

224 S.W. 828

284 Mo. 465

SARAH JANE McGEHEE et al., Appellants, v. FRANK GARRINGER, R. N. MOORE, et al. SARAH JANE McGEHEE et al., Appellants, v. DENNIE GARRINGER et al

Supreme Court of Missouri

October 11, 1920

Appeal from Greene Circuit Court. -- Hon. Guy D. Kirby, Judge.

Affirmed.

Arch L Sims and John L. McNatt for appellants.

(1) Parole evidence to vary, change, or explain the provisions of a deed is inadmissible. This is so even where there is such provision contained in a written contract, as the terms of the deed must determine the intent of the parties and the estate conveyed. Davidson v. Mauson, 146 Mo. 608. (2) Declarations of intention or of explanation of a grantor to a deed, either before or after its execution is inadmissible for any purpose. Kenny v. Muning, 170 Mo. 706; Collins v. Harrell, 219 Mo. 306. (3) A deed of land, absolute in form but intended by the parties merely as security for a debt being in legal effect a mortgage, a conveyance executed by the grantee therein to a third person who has notice of the defeasible nature of the original deed operates as an assignment of the mortgage and of the debt secured and nothing more. 27 Cyc. 1293. (4) A person accepting a deed and claiming title through same is estopped to dispute the truthfulness of any of the recitals of said deed. Fox v. Windis, 127 Mo. 502; Hannibal, etc v. Green, 68 Mo. 169; King v. Union Trust Co., 226 Mo. 351; Tyler v. Hall, 106 Mo. 313; Dickerson v. Anderson, 9 Mo. 156; Clamorgan v. Green, 32 Mo. 285; Patton v. Forgery, 171 Mo.App. 1; Curry v. Lafon, 133 Mo.App. 176; Durrette v. Briggs, 47 Mo. 356. (a) This principle of estoppel applies not only as to the parties to the deed but also to privies by inheritance or by deed. Hasmith v. Kerchoffer, 79 Mo. 241. (b) And such estoppels may be raised although not pleaded in a reply. Brehan Bank v. Branch, 104 Mo. 425. (5) The defendants claiming under said quitclaim deed cannot dispute that the warranty deed was a mortgage. The court found same to be a mortgage. Neither can the defendants dispute that the debt secured by said mortgage had been paid, for same was so recited in said quitclaim deed. The payment of a mortgaged debt, ipso facto, relinquishes the interest the mortgagee has in said property. Gibbs v. Haughout, 207 Mo. 388; McNair v. Picotte, 33 Mo. 57; Collins v. Stocking, 98 Mo. 295; Bray v. Conrad, 101 Mo. 331. (6) A person conveying property in fraud of creditors, and all those claiming under him through said conveyance, will not be permitted in a court of law or equity to introduce such evidence of fraud. Over v. Howard, 11 Mo. 425; Thomas v. Thomas, 107 Mo. 464; Davidson v. Dockery, 179 Mo. 696. (7) The Statute of Limitations has no application in this case. Herndon v. Yates, 194 S.W. 46.

Katherine Halterman and William B. Skinner for respondents.

(1) A fraudulent conveyance is valid between the parties thereto, and as a general rule is only voidable as to creditors who by timely and proper proceedings acquire some specific lien on the property conveyed, prior to a bona-fide purchase thereof by a third party for value and without notice. Jacobs v. Smith, 89 Mo. 673. (2) A transfer of property made in fraud of creditors, while void as to them, is binding upon the parties thereto and those in privity with them. Whitaker v. Whitaker, 157 Mo. 353; Davidson v. Dockery, 179 Mo. 696. (3) Both parties must intend that a deed absolute on its face shall be treated as a mortgage to make it such. Duell v. Leslie, 207 Mo. 667. (4) A mortgagor (grantor) who abandons his right to redeem from an absolute conveyance and who elects to treat the conveyance as an absolute deed instead of a mortgage is bound by such election and cannot afterwards redeem. He may also verbally waive his right of redemption in favor of another person and after a long acquiescence in the transaction, the other in the meantime having redeemed the land and improved it, he will not be allowed to redeem from him. In any event redemption must be made within the time allowed by the statute of limitations. 1 Jones on Mortgages (7 Ed.), par. 338; Tiedeman on Real Property (3 Ed.), par. 235; Scanlan v. Scanlan, 134 Ill. 630; Hutchinson v. Page, 246 Ill. 71; Adams v. Cooty, 60 Vt. 395; Deadman v. Yantis, 230 Ill. 243; McMillian v. Jewell, 85 Ala. 476; Cramer v. Wilson, 202 Ill. 83; Wamsley v. Crook, 3 Nebr. 344; Vennum v. Babcock, 13 Iowa 194; Yaule v. Richards, 1 N.J.Eq. 534, 23 Am. Dec. 722; Shaw v. Walbridge, 33 Ohio St. 1; Woodworth v. Carmen, 43 Iowa 504; Westfall v. Babcock, 16 Hun. (N. Y.) 541; Trull v. Skinner, 34 Mass. 215. (5) Where a deed is absolute in form and the equities of the grantor to have it held for security lie only in parol, the equities may be discharged by a subsequent parol agreement, which leaves the title absolute in accordance with the terms of the deed. Sevis v. Gilman, 199 Mass. 384; Scholl v. Hopper, 134 Ky. 83. (6) The activity of equity powers cannot be invoked where a party has negligently slept upon his rights and induced others to act upon the confident belief that he has abandoned them. Schradski v. Albright, 93 Mo. 42; Bobb v. Wolf, 148 Mo. 335. As between the original parties a recital in a deed, unnecessary to the conveyance, will not operate as an estoppel. Osborn v. Osborn, 6 Cal. 149; Devlin on Real Estate, paragraph 995.

BROWN, C. Ragland and Small, CC., not sitting. Woodson, J., absent.

OPINION

In Banc

BROWN C. --

The two actions entitled as above were brought to the May term, 1917, of the Lawrence County Circuit Court, by petition founded upon Section 2535, Revised Statutes 1909, to determine the title to about one hundred and twenty acres of land in that county. They were removed by change of venue to Greene County, where they were tried together as one case upon the same evidence, involving the same issues. The judgment of the trial court was for the defendants. The plaintiffs appealed and both appeals are consolidated for hearing in this court.

The plaintiffs are children and heirs of William Garringer, claiming by inheritance from him. The defendants, claiming adversely to plaintiffs, rely upon a title derived through Nancy C. Garringer. The only issue in the case is whether, at the time of the death of William Garringer in 1901, Nancy C. Garringer, his wife, was already seized of the premises in her own right.

The common source of title is William Garringer, who owned the land and occupied it as a homestead for himself and family, consisting of his wife and their children. On August 15, 1874, he conveyed it by warranty deed to Henry C. Young for a recited consideration of $ 1,500, his wife Nancy joining in the deed. At that time he was very much concerned about his liability as surety on a note to the county for the benefit of the school fund, on which suit had been or was about to be instituted and on which a judgment was subsequently recovered. Young made a lease of the same land to Garringer without date, but expiring on September 3, 1876, for the consideration of $ 100 payable on that date, and signed by both parties.

On March 7, 1878, Young executed a quitclaim deed whereby he remised, released and quit-claimed the same land to Nancy C. Garringer. Following the description are the following words: "The land was conveyed to me the 15th day of August, 1874, to secure attorneys' fees due myself and John G. Wear, and William Garringer has paid said Wear the fees. The deed is absolute on its face, was intended between the parties as a mortgage." This deed was filed for record November 30, 1883.

There was testimony strongly tending to show that Mr. Garringer at the time of these transactions stated that he had put this property out of his hands for the purpose of protecting it against the surety debt.

Mrs. Garringer continued to occupy the land as her homestead after her husband's death until her own death in 1917. Under the stipulation for the consolidation of these cases the findings and judgment of the court are copied in the appellants' abstract of the record in number 20,895, which involves the title adjudged to be in Moore. It is agreed, however, that Number 20897, in which the title was adjudged to Dennie Garringer, involves precisely the same questions. The judgment and findings in the Moore case are as follows:

"The court finds that William Garringer, Sr., through whom plaintiffs and certain defendants claim title by inheritance at the time of his death had no title to the real estate described in plaintiffs' petition, to-wit: The Southwest Quarter of the Southwest Quarter of Section Eleven, Township Twenty-eight, Range Twenty-six, in Lawrence County, Missouri, except two acres in form of a square in the southeast corner thereof. The court finds that on the 15th day of August, 1874, the said William Garringer and his wife, Nancy C. Garringer, by their deed recorded in Book R, page 5, and Book 106, page 594, in the Recorder's office in Lawrence County, Missouri, conveyed the above described real estate to Henry C. Young, to secure attorney's fees due to said Young and one John G. Wear, and that thereafter the said Henry C. Young, to-wit, March 7th A. D. 1878, by his deed recorded in Book Y. page 523, in the Recorder's office in Lawrence County, Missouri, and at the instance and request of said William Garringer, Sr., conveyed the said land to Nancy C. Garringer, and she became vested with the title thereto; the court further finds that the wife of Henry C. Young, who failed to join with him in said deed, was dead at the commencement of this action, and the court further finds that after the death of William Garringer, Sr., the said Nancy C. Garringer by her deed conveyed said land to Frank Garringer, who thereafter conveyed the same to Fred...