Appleman v. Appleman
| Decision Date | 22 June 1897 |
| Citation | 41 S.W. 794,140 Mo. 309 |
| Parties | Appleman et al., Appellants, v. Appleman et al |
| Court | Missouri Supreme Court |
Appeal from Audrain Circuit Court. -- Hon. E. M. Hughes, Judge.
Affirmed.
W. H Kennan and W. W. Fry for appellants.
(1) The deed is said to have been made the day the will was made September 11, 1886. The will after his death was offered for probate and failed to be probated for the reason one of the witnesses thought at the time he signed the will he was not capable of making a will or conveying, in any way, his property. In addition to this there is the evidence of several witnesses who swear that they do not believe he was capable of conveying his property, and besides in this connection, the fact that he was afterward adjudged insane should be considered and given great weight. (2) Hall v. Hall, 107 Mo. 101; Standiford v. Standiford, 97 Mo. 238; Huey v. Huey, 65 Mo. 689; Taylor v. Davis, 72 Mo. 291; 2 Greenleaf, Ev., sec. 297. (3) The evidence of William Anderson, of Nancy Bowne, and Eliza Bowne indicates that she knew well the character of the deed, and knew it was only a life estate to her in the one hundred and sixty acres of land and not a warranty, for she said in the presence of the above named witnesses "that if the deed was not as she wanted it she would burn it up, she would tear it up," etc. There must be an acceptance by the grantee. Rogers v. Carey, 47 Mo. 232; Ebersole v. Rankin, 102 Mo. 488; Sneathen v. Sneathen, 104 Mo. 210.
George Robertson for respondents.
(1) The mere fact that the mind of a person is impaired by age or disease does not render such person incompetent to make valid contracts. The legal test is the capacity to understand the nature and effect of the transaction. Cutler v. Zollinger, 117 Mo. 101. (2) There is nothing in the case to indicate that Levi Appleman did not part with his control of the deed at the time of delivering it to Squire Holloway. The delivery of the deed to Squire Holloway was a complete delivery to Mary Jane Appleman. Sneathen v. Sneathen, 104 Mo. 201; Hamilton v. Armstrong, 120 Mo. 597; Crowder v. Searcy, 103 Mo. 97; Rothenbarger v. Rothenbarger, 111 Mo. 1; Turner v. Carpenter, 83 Mo. 333. (3) Her going into possession of the land is, in point of fact, conclusive as to her acceptance. Devlin on Deeds, secs. 287 and 289; Rogers v. Carey, 47 Mo. 232; Allen v. DeGroodt, 105 Mo. 442; Hall v. Hall, 107 Mo. 101; Church v. Gillmore, 30 Am. Dec. 82; Merrills v. Swift, 46 Am. Dec. 315; Thom v. San Francisco, 4 Cal. 169.
This is an action brought by a number of the heirs at law of Levi Appleman, deceased, against the other heirs of said deceased, for partition of the real estate of which the said Appleman died seized, alleged to be three hundred and three acres as described in the petition. The only contested issues in the case arise upon the answer of the defendant Mary J. Appleman, a daughter of said deceased, who therein claimed that in the month of September, 1886, her father, the said Levi Appleman, in consideration of service theretofore rendered him, by his warranty deed duly signed, sealed, and acknowledged, conveyed to her, of the land described in the petition, "the northeast quarter of section 25, township 52, range 12, containing one hundred and sixty acres, and delivered the same to one G. W. Holloway for her; that afterward and while the deed remained in the hands of said Holloway, the same was lost or destroyed," and prayed that the title to said one hundred and sixty acre tract be vested in her. Issue upon this answer was joined by plaintiffs in which, after a general denial of the allegations of the answer, it was averred that if there was a deed made as alleged in said answer, that the said Levi Appleman at the time of the making thereof was of unsound mind and incapable of making a valid conveyance, that the same was without consideration and was never accepted by said Mary J. Appleman. The issues were tried by the court and found for the defendant Mary J. Appleman and the title to said one hundred and sixty acres decreed to her, from which decree the plaintiffs appeal.
After a careful consideration of all the evidence in the case we return the following answers to the questions raised by counsel for appellants in their brief.
1. It appears satisfactorily from the evidence that on the eleventh day of September, 1886, the said Levi...
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