Baker v. Baker

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Baker v. Baker, 363 Mo. 318, 251 S.W.2d 31, 33 A.L.R.2d 1431 (Mo. 1952)
• Decision Date: 14 July 1952
• Docket Number: No. 42874,No. 2,42874,2
• Parties: , 33 A.L.R.2d 1431 BAKER et al. v. BAKER

Page 31

251 S.W.2d 31

363 Mo. 318, 33 A.L.R.2d 1431

BAKER et al. v. BAKER.

No. 42874.

Supreme Court of Missouri, Division No. 2.

July 14, 1952.

Motion for Rehearing or to Transfer to Court en Banc Denied

Sept. 8, 1952.

J. B. Smoot, Memphis, Rendlen & Rendlen, Hannibal, for appellants.

Jayne & Jayne, Kirksville, for respondent.

BOHLING, Commissioner.

Harold M. Baker, O. E. Baker, Icy L. Smith and W. E. Baker (plaintiffs-appellants) instituted this action against Eva E. Baker (defendant-respondent) to determine title to the East 3/4ths of the NE 1/4 of Sec. 5, Twp. 65 north, R. 11 west, 121 acres in Scotland County, Missouri.

D. F. Baker is the common source of title. D. F. Baker and Maggie E. Baker, his wife, had five children, to wit: Icy L. Smith, O. E. Baker, O. A. Baker, W. E. Baker and G. E. Baker. Plaintiff Harold M. Baker is the sole bodily heir of O. A. Baker, who died in 1940, leaving his widow, Clora Baker, and said son surviving. The defendant is the widow of G. E. Baker, who was also known as Glen E. Baker.

Plaintiffs pleaded a title in fee as the reversioners under a warranty deed of D F. Baker and wife, dated February 28, 1920, conveying said land to their son 'G. E. Baker, and his bodily heirs,' subject to the use of said lands by defendant so long as she remained the widow of G. E. Baker. G. E. Baker died without bodily heirs. This deed was never recorded.

Defendant's answer contained a cross action in equity. It admitted the execution but alleged there was no delivery of the deed aforesaid during the lifetime of the grantors; that, under a voluntary division and partition of D. F. Baker's real estate by his heirs, G. E. Baker accepted as his portion the real estate described in said deed and had acquired title thereto by adverse possession; and that, in the alternative and for a cross action in equity, if said partition was ineffectual, then all the lands of which D. F. Baker died seized, specifically described in the answer, and for which he, on said February 28, 1920, executed separate deeds to his several children, descended to said children as tenants in common, and defendant, as the widow and testamentary beneficiary of G. E. Baker, succeeded to his interest therein, and prayed an equitable decree of partition setting off to her the land described in the deed to G. E. Baker and which he had occupied and improved.

Plaintiffs' reply and answer are not material here.

The main issue is whether the warranty deed to G. E. Baker was delivered. The trial court found that it, as well as other deeds executed by D F. Baker on February 28, 1920, had not been delivered during his lifetime, stating: 'The testimony of one of the plaintiffs, Mrs. Icy L. Smith, is to that effect and it seems to be supported by the circumstances in evidence.' Judgment accordingly. Plaintiffs appealed.

Plaintiffs offered and the court heard, subject to objection, the testimony of W. E. Baker and O. E. Baker, plaintiffs. They were present on the occasions here involved. Defendant says they were incompetent witnesses to the transactions between D. F. Baker and G. E. Baker under Sec. 491.010, RSMo 1949, V.A.M.S. which disqualifies one party to the contract or cause of action as a witness when the other party is dead, citing Wren v. Sturgeon, Mo.Sup., 184 S.W. 1036, 1037, holding the grantee in a deed after grantor's death was incompetent to testify concerning the delivery of the deed. The Wren case does not rule the instant issue; but said Sec. 491.010 further provides, so far as here material: 'and no party to such suit or proceeding wnose right of action or defense is derived to him from one who is, or if living would be, subject to the foregoing disqualification, shall be admitted to testify in his own favor * * *.' The plaintiffs derive their rights, if any, from D. F. Baker, the other party to the contract, who would be disqualified as a witness by reason of the death of G. E. Baker. Messimer v. McCrary, 113 Mo. 382, 387(I), 21 S.W. 17, 18(1); Sutorius v. Mayor, 350 Mo. 1235, 1243, 170 S.W.2d 387, 391, citing cases, Id., 350 Mo. 1235, 171 S.W.2d 69. It appears that like reasoning would apply to the testimony of Eva Baker, defendant, tending to establish the nondelivery of the deed. Her rights, if any, are derived from her husband, G. E. Baker, and the grantors in his deed are dead.

The defendant took and read in evidence the deposition of Icy L. Smith, one of the plaintiffs, who also was present on the occasions involved, and is subject to the same disqualifications as W. E. and O. E. Baker. However, the incompetency of a witness under the statute may be and is waived by the adverse party taking his deposition, whether the same be filed in court or not. Rice v. Waddill, 168 Mo. 99, 118 (II), 67 S.W. 605, 609(2); P. M. Bruner Granitoid Co. v. Glencoe Lime & Cement Co., Mo.App., 187 S.W. 807, 811.

The voluntary calling by a party of one physician or surgeon to testify concerning the party's condition waives the privilege and incompetency under Sec. 491.060(5), RSMo 1949, V.A.M.S. of other physicians and surgeons who treated the party at about the same time and for substantially the same illness. Epstein v. Pennsylvania R. Co., Banc, 250 Mo. 1, 23 et seq., 37, 156 S.W. 699, 705 et seq., 710, 48 L.R.A.,N.S., 394, Amm.Cas.1915A, 423; Wells v. City of Jefferson, 345 Mo. 239, 246, 132 S.W.2d 1006, 1010, citing cases; Denny v. Robertson, 352 Mo. 609, 614, 179 S.W.2d 5, 6; State v. Cochran, 356 Mo. 778, 785, 203 S.W.2d 707, 711; Priebe v. Crandall, Mo.App., 187 S.W. 605, 608.

We think like reasoning applies to the disqualification of a witness under the 'Dead Man's Statute,' Sec. 491.010, supra, and such was the stated view of the court in Fowler v. Sone, Mo.App., 226 S.W. 995, 996. To prevent the statutory disqualification from becoming an instrument of injustice, we have held that, if a party waives said disqualification of a witness, he waives it for all purposes--'he may not limit his waiver.' In re Trautmann's Estate, 300 Mo. 314, 322, 254 S.W. 286, 288; Lampe v. Franklin American Trust Co., 339 Mo. 361, 372, 373, 96 S.W.2d 710, 715. The waiver should apply to all witnesses as well as to the whole of a witness' knowledge of the facts. Fowler v. Sone, supra. Defendant waived the disqualifications of the witnesses.

Mr. and Mrs. D. F. Baker, who were then about 66 years of age, and all of their children went to the law office of J. M. Jayne in Memphis, Missouri, on February 28, 1920. There the father and mother executed five separate like warranty deeds, all dated February 28, 1920, conveying all the lands of the father. Each deed conveyed a different parcel of his lands to a named child and his or her 'bodily heirs.' The recited consideration was 'love and affection and the sum of Two Dollars.' The deed to 'G. E. Baker, and his bodily heirs' conveyed the real estate described in plaintiffs' petition and contained the following provisions:

'The said parties of the first part [grantors] reserve to themselves the life use of said lands, reserving the right to use and rent the same for their own use and benefit so long as each shall live and after their deaths the complete title to vest in said second party.

'Subject however that the grantee's wife if living shall have the use of said lands as long as she shall remain his widow.'

Also, on February 28, 1920, D. F. Baker and Maggie E. Baker, of the first part, and O. E. Baker, W. E. Baker and G. E. Baker, of the second part, executed a contract, so far as material here, reading:

Witnesseth that Whereas the said parties of the first part have this day made, executed and delivered to each of the said parties of the second part a Deed to certain real estate in Scotland County, Missouri, which lands are described in said deeds and that to O. E. Baker in addition to the land I intend to give him I have sold to him the South half of the Northwest fractional Quarter of Section 18, of Township 65, Range 11, West, at the price and sum of $60 per acre, and this contract is to show that he owes me for said land for which I have taken his note, and when he pays said note said land to be his free from our rights, and in case he does not pay said note before each of the said parties of the first part die, then it is to go into the estate and be divided up between my children as to share and share alike.

'[Here follow provisions with respect to 60 acres of the lands conveyed to W. E. Baker at a price of $50 an acre and substantially similar to the provisions relating to G. E. Baker in the succeeding paragraph.]

'Also I have sold to said G. E. Baker which is a part of the land conveyed to him in his deed about 21 acres of said East three fourths (3/4) of the Northeast Quarter of Section 5, Township 65, of Range 11, West, at the price and sum of $100 per acre for which he has given us his note and when said note is paid said land is to be his free from any control that we may have therein, but in case he does not pay said note until after our death, it is to be paid into our estate and be divided as aforesaid.'

Four copies of the contract were signed by the said parties.

The $2,100 note of Glen E. Baker mentioned in the contract was produced by defendant and introduced in evidence by plaintiffs. If is dated February 28, 1920 and is payable to the order of D. F. Baker and Maggie E. Baker, 'when the payees herein are dead,' with 5% interest per annum from date. It carried the following endorsement: 'Whereas we took from our son Glen E. Baker the within note being for the balance due on the farm we gave him by deed, which deed to be delivered to him at our death, and whereas land has decreased in value and owing to the conditions of said deed, we hereby release him from the payment of this note. Dated at Memphis, Missouri, this 16th day of December, 1927. D. F. Baker, Maggie E. Baker.'

D. F. Baker died December 24, 1928, intestate. Maggie E. Baker died in 1931,...