Church v. Combs

• Decision Date: 16 March 1933
• Docket Number: 30798
• Citation: 58 S.W.2d 467,332 Mo. 334
• Parties: Beva Combs Church and Mae Wellingham v. Lee E. Combs, Cora Combs, and Willard Hawkins, Administrator of Jacob S. Combs, Appellant
• Court: Missouri Supreme Court

58 S.W.2d 467

332 Mo. 334

Beva Combs Church and Mae Wellingham v. Lee E. Combs, Cora Combs, and Willard Hawkins, Administrator of Jacob S. Combs, Appellant

No. 30798

Supreme Court of Missouri

March 16, 1933

Appeal from Sullivan Circuit Court; Hon. A. G. Knight Judge.

Affirmed.

S J. and G. C. Jones for appellant.

(1) Parties to a deed may consent to a change or alteration in it after the deed has been fully and completely executed delivered and recorded and the deed will be valid and binding on the parties so procuring or consenting to the alteration unless the rights of creditors have intervened. Boland v. Kirkwood Trust Co., 220 Mo.App. 1219; Coney v. Laird, 153 Mo. 408; 2 C. J. sec. 113, p. 1238; 2 C. J. sec. 115, p. 1240; 2 C. J. sec. 116, p. 1240; 2 C. J. sec. 118, p. 1242; Abbott v. Abbott, 189 Ill. 488. (2) The evidence in this case warrants the conclusion that Mr. Combs desired the deed in the first instance to be both to him and his wife. The very fact that after the deed was recorded and returned to him, that he took it to the notary and through him procured the change to be made is very strong and conclusive evidence that he wanted the deed made so as to create an estate by the entirety in him and his wife. There being no creditors or innocent parties involved, equity could have reformed the deed in accordance with his intent; the parties agreeing could do for themselves what equity could do for them. Reid v. Reid, 20 S.W.2d 1015. (3) Where parties procure a change or alteration to be made in a deed and thereafter accept it in its altered and changed form, neither they nor their heirs will be heard to raise any question as to the validity of the transaction. The grantee and his heirs will be estopped from claiming under the deed as originally made. Reid v. Reid, 20 S.W.2d 1015. (4) Jacob S. Combs having elected to procure the change in the deed by having the name of Cora Combs written therein, with the consent of the grantors, at his instance, suggestion and request clearly estopped him from thereafter raising any question as to the validity of the deed in its altered form. He being estopped, his heirs as well as all other persons claiming under him are also estopped. Fox v. Windes, 127 Mo. 502; Potter v. Adams, 125 Mo. 118; Williams v. McGuire, 60 Mo. 252; Reid v. Reid, 20 S.W.2d 1015; Spence v. State Natl. Bank of El Paso, 5 S.W.2d 754. (5) Even though the change or alteration of the deed by the insertion of Mrs. Combs' name therein was void, the said Jacob S. Combs could not take advantage of it. His procurement of the change forever closed his mouth against any subsequent attack on the validity of the deed as altered, amended, or corrected, and at the same time closed the mouth of his heirs. Fox v. Windes, 127 Mo. 502; Potter v. Adams, 125 Mo. 118; Williams v. McGuire, 60 Mo. 252; Reid v. Reid, 20 S.W.2d 1015; Spence v. State Natl. Bank of El Paso, 5 S.W.2d 754. (6) No one other than the grantors and grantee in the deed as originally written had any interest in or concern in the land. No one at the time of the change or correction in the original deed had any right to raise any question as to whether or not the correction or alteration should be made, except the Crawfords and Jacob S. Combs. Mr. Combs had the right to request of the grantors that the change or correction be made. The Crawfords had a right to consent to its being made. If they did so, this was all that was required. At the time the alteration or change was made in the deed Mr. Combs' children had no interest in or the title to the land. It was no concern of theirs as to whether or not the deed should be changed or corrected. Boland v. Kirkwood Trust Co., 220 Mo.App. 1221; 2 C. J. sec. 27, p. 1127. (7) When Jacob S. Combs discovered the mistake in the deed in its failure to have his wife's name therein as a joint grantee elected to have the deed corrected by the insertion of her name therein and on his own motion procured the correction to be made; and after it was made accepted the deed, recorded it and went into possession of the land thereafter. Such amounted to and was an election on his part to take the title as conveyed by the corrected deed. It bound him and likewise bound all persons claiming under him. Fox v. Windes, 127 Mo. 502; Potter v. Adams, 125 Mo. 118. (8) The recording of a deed imparts no validity to it. The mere fact the deed had been recorded prior to the change or alteration cuts no figure. Elsea v. Smith, 273 Mo. 412.

P. M. Marr for respondents.

(1) The first deed being fully executed, delivered and recorded, conveyed the title to Jacob Combs, and his act nearly one month later in having Cora Combs' name inserted was a nullity, there being no title remaining in Crawfords to convey to Combs and wife jointly. Carr v. Fry, 225 Mass. 531, 114 N.E. 745; Wilson v. Hill, 13 N.J.Eq. 143; Gibbs v. Potter, 166 Ind. 471, 77 N.E. 942; Jeffers v. Philo, 36 Oh. St. 173; Gulf Red Cedar Lumber Co. v. O'Neil, 131 Ala. 466, 30 So. 466; Alexander v. Hickox, 34 Mo. 496; Jones v. Neale, 2 Patton & H. Va. 339; Secs. 2967, 3019, R. S. 1929; 2 Tiffany on Real Property (2 Ed.) sec. 434, p. 1603; 18 C. J. sec. 472, p. 406. (2) Neither Combs nor his heirs, the respondents, were "estopped" to assert the legal title conveyed to Combs, because: (a) There was no mutual mistake between grantors and grantee in execution, delivery and recording of first deed. (b) There being no mutual mistake, equity could not have reformed the first deed and placed the title in Combs and wife as tenants by entirety. (c) The elements necessary to constitute an estoppel are not present. (d) Cora Combs did not change her position relying on the second deed. There was no change in her position. She paid no part of the purchase price, and made no improvements. (e) The second deed was against Combs' interest, there was no fraudulent purpose and there was no consideration for it. Henderson v. Beasley, 137 Mo. 199; Hunter v. Patterson, 142 Mo. 310; Benn v. Prichett, 163 Mo. 560; McLain v. Trust Co., 292 Mo. 114, 237 S.W. 506; Wilkinson v. Lieberman, 327 Mo. 420, 37 S.W.2d 533; Powell v. Bowen, 279 Mo. 280, 214 S.W. 142; Dougal v. Gryer, 3 Mo. 40.

Ferguson, C. Sturgis and Hyde, CC., concur.

OPINION

FERGUSON

Suit for partition of eighty acres of land in Sullivan County. The plaintiffs, Beva Combs Church and Mae Wellingham and defendant, Lee E. Combs, are the children and all the heirs at law of Jacob S. Combs, deceased. Jacob S Combs was married three times. The defendant, Lee E. Combs is the only child born of the first marriage. The plaintiffs, Beva Combs Church and Mae Wellingham are the only children born of the second marriage. The third marriage with the defendant, Cora Combs, occurred in 1911 and they lived together as husband and wife until the death of Jacob S. Combs June 14, 1928. No children were born of this marriage. The petition alleged that at the time of his death Jacob S. Combs "was the owner in fee simple and in possession of" 80 acres of land described and that "plaintiffs and defendant, Lee E. Combs, are each the owners of an undivided one-third interest in and to the above described real estate, subject to the dower and homestead rights to which the defendant Cora Combs is entitled in said lands." The petition prays, "that the interest of the said widow, the defendant Cora Combs be set off and that partition of said land be made between the parties according to their respective interests therein, and that the land be ordered sold," etc. The answer of the defendant Cora Combs is in two counts. The first count is to quiet title, alleging, in conventional manner, that the answering defendant is the owner in fee simple of the land described in the petition; that neither the plaintiffs nor defendant, Lee Combs "have any right, title, estate or interest in said real estate or any part thereof;" that any claim by them "in and to said real estate . . . casts a cloud on defendant's title;" and prays the court to adjudge the answering defendant to be the "sole . . . owner of the fee simple title." The second count alleges that defendant and Jacob S. Combs, her husband, "purchased" the real property described in the petition and paid therefor $ 8000; that it was agreed between them the real estate "should be conveyed" to them "jointly so that the title thereto would vest in them as an estate by the entirety;" that "by mistake, oversight or inadvertence on the part of Jacob S. Combs he failed and neglected to have said deed made to both as joint grantees" and "said deed was made to him as the sole grantee therein;" that said deed was thereupon filed and recorded; that thereafter Jacob S. Combs discovered "that the name of this defendant did not appear therein as a joint grantee with himself" whereupon he caused said deed to "be amended and corrected . . . by the notary who prepared the same" in the presence of and with "the consent and acquiescence" of the grantors "by writing the name of this defendant therein as a joint grantee with the said Jacob S. Combs;" that after such amendment was made the grantors acknowledged the amendment "to be their free act and deed but the notary did not indorse or write the same on said deed but adopted the former acknowledgment; that said deed, as corrected, was then delivered to Jacob S. Combs who caused same to be again recorded; that by the making of such amendment and redelivery of said deed title to the lands therein described "became vested as an estate by the entirety in this defendant and the said Jacob S. Combs and upon the death of the said Jacob S. Combs the full fee simple title thereto vested in this defendant." Further answering defendant asserts that by causing the deed to be "corrected" and accepting and recording...