Blackburn v. Spence, 50488

• Decision Date: 14 December 1964
• Docket Number: No. 2,No. 50488,50488,2
• Citation: Blackburn v. Spence, 384 S.W.2d 535 (Mo. 1964)
• Parties: Everett J. BLACKBURN, Flora Blackburn Dempsey, Burnis S. Blackburn, Zella Blackburn Brooks and Luther Blackburn, Appellants, v. George David SPENCE, Sylvia Blackburn Steward, Jane Blackburn Stuller, Ora Blackburn Baughman, Robert R. Blackburn, Robert A. Smith and John Hancock Mutual Life Insurance Company, Respondents
• Court: Missouri Supreme Court

Page 535

384 S.W.2d 535

Everett J. BLACKBURN, Flora Blackburn Dempsey, Burnis S Blackburn, Zella Blackburn Brooks and Luther Blackburn, Appellants, v. George David SPENCE, Sylvia Blackburn Steward, Jane Blackburn Stuller, Ora Blackburn Baughman, Robert R. Blackburn, Robert A. Smith and John Hancock Mutual Life Insurance Company, Respondents.

No. 50488.

Supreme Court of Missouri, Division No. 2.

Dec. 14, 1964.

Veryl L. Riddle, Riddle, O'Herin & Newberry, Malden, for appellants.

McHaney, Billings & Welman, Kennett, for respondents, George David Spence, Robert A. Smith and John Hancock Mut. Life Ins. Co.

STOCKARD, Commissioner.

Plaintiffs have appealed from a judgment adverse to them in their suit in equity to set aside a deed to certain real estate located in Dunklin County, Missouri.

David S. and Pansy Blackburn acquired the land in question as tenants by the entirety on November 9, 1938. The Blackburns had nine children; Everett, Flora, Burnis, Zella and Luther who are plaintiffs in this suit, and Sylvia, Jane, Ora and Robert who are defendants. The deed, which the plaintiffs seek to have set aside on the basis that it is a forgery is dated January 1, 1945, and purports to convey the land from David S. and Pansy Blackburn to Sylvia Steward, one of the children. It is admitted that Pansy Blackburn signed the deed; at least there is no contention that her signature was forged. It was stipulated by the parties that the 'signature of David S. Blackburn' appearing on the deed is not in his handwriting. On the reverse side of the deed is what purports to be an acknowledgment by the grantors taken on January 1, 1945, before Henry A. McKay in his capacity as a notary public. As a part of the jurat it is stated that his commission expired on April 11, 1945. It appears that the date of expiration may have been typed in as April 11, 1949 and that the year was marked out in ink and then written in as 1945. However, while Henry A. McKay had previously held a notary's commission which expired on October 15, 1943, he was not a notary public on January 1, 1945. He was subsequently granted a commission as a notary public effective April 12, 1945, which expired on April 11, 1949. There is evidence that at the time the deed was signed it was delivered to Sylvia Steward, the grantee, and appellants do not contend otherwise.

At the trial the testimony of Sylvia Steward and of Jane Stuller was admitted over the objection that they were incompetent to testify under the 'dead man's statute,' Section 491.010 RSMo 1959, V.A.M.S. The trial court subsequently ruled that the testimony of Sylvia Steward was improperly admitted but made no ruling as to the testimony of Jane Stuller. In our statement of the facts concerning the execution of the deed by David S. Blackburn we shall make no reference to the testimony of either of these witnesses.

David S. and Pansy Blackburn lived on the land, and in 1945 it was subject to a deed of trust in favor of The Prudential Insurance Company to secure a debt in the original amount of $3,600 but which had been reduced to approximately $2,500. When the Blackburns acquired the land in 1938 they took it subject to this deed of trust. The evidence justifies an inference that the Blackburns were not well off financially. Henry A. McKay testified that on January 1, 1945, Mr. and Mrs. Blackburn and their daughters Sylvia and Flora (Jane?) came to his office, and at the request of Mr. Blackburn he prepared a deed to the land on a regular printed form naming David S. and Pansy Blackburn as grantors and their daughter, Sylvia Steward, as grantee. Pansy Blackburn signed the deed in his presence. Mr. Blackburn was afflicted with palsy, and Mr. McKay testified that 'He [David S. Blackburn] started to sign his name and he was nervous and shaking and couldn't even hold the pen, and he said, 'Is it all right for the girl to sign it,' and I said, 'No, not unless you hold her hand. You hold her hand,' and that was Sylvia, and she was sitting over there and not even standing up there when the deed was fixing to be signed. I said, 'Now, you hold Sylvia's hand and I think it will be all right. I have seen it done that way.''

The deed provided for a consideration of $4,000, and it was also provided therein that 'Party of the second part assumes and agree__ to pay Ora Baughman and Jane Stuller the sum of Five Thousand and no/100, who hold a lein [sic] upon this land.' Mr. McKay stated that he saw Sylvia give her father some money, but he did not know the amount, and he added that he did not know what the payment was for. On January 2, 1945, the day immediately following the execution of the deed, Mr. Blackburn obtained a cashier's check from the Bank of Kennett payable to The Prudential Insurance Company in the amount of $2,489.80, and on February 6, 1945, the deed of trust was released of record. On July 6, 1946, Mr. Blackburn opened an account and made a deposit of an undisclosed amount with the Cotton Exchange Bank at Kennett, and both he and Mrs. Blackburn signed the signature card. The money deposited was in cash and the bills were old and had 'a peculiar odor about them * * * possibly like moth balls.' Mr. Blackburn handed the money to the teller 'in small groups of currency which were obtained from various places about his person.' Mr. and Mrs. Blackburn continued to live on the land in what was called the home place, and in some of the following years Mr. Blackburn rented some or all of the land to others. In 1950 and 1951, Sylvia Steward and her husband moved on the land in a tenant house, and on some forms prepared at the Dunklin County Agricultural Stabilization Committee, Mr. Blackburn was listed as the landlord, and Amon Steward (Sylvia's husband) was listed as the operator. The representative of this agency admitted, however, that ownership records were not kept up to date.

On November 1, 1951, Pansy Blackburn died, and at that time all the children who did not previously know about the deed to Sylvia obtained actual knowledge of it. The deed was recorded on February 17, 1951. Jane and Ora gave Sylvia a quitclaim deed on November 8, 1951, in which it was stated that 'full payment' of the amount provided for in the deed from David S. and Pansy Blackburn to Sylvia had been received by Jane and Ora, and that the quitclaim deed was given in release of the lien mentioned in that deed. Everett P. Blackburn, one of the plaintiffs, testified that he learned about the deed on the day or the day before his mother died, but at no time thereafter during the following six years that his father lived did he talk to his father about it although he did visit with him. On March 18, 1945, Sylvia and her husband gave a deed of trust on the land to secure a note in the amount of $6,250, and on December 27, 1955, the land was sold to Mary Virginia Spence subject to this deed of trust. Everett Blackburn testified that he knew of this sale. Zella, Burnis and Flora, other plaintiffs, also testified, but none stated that they said anything to their father after learning in 1951 about the deed to Sylvia. Robert Blackburn, a defendant, testified that 'shortly after' he got out of military service in 1946, his father told him that he had sold the land to Sylvia and had talked to him about buying the farm, and that he tried to buy it from Sylvia. He further stated that at one time he tried to borrow the money with which to buy it. He also testified that in 1951, his brothers, Everett and Burnis, asked him if he knew that their father had sold the farm to Sylvia, and that they told him that they had already talked to a lawyer. Subsequently, Robert also talked to the same lawyer. Robert testified that after the sale of the land to Sylvia, his father bought another farm, but neither the size of it nor the price paid is set forth. Subsequently, Mr. Blackburn sold that farm. Mr. Blackburn died in 1957 at age 83 while living in Florida with Sylvia. This suit was filed on August 11, 1958.

Appellants assert that the trial court erred 'in admitting the testimony of Jane...