Cleary v. Cleary
| Decision Date | 08 November 1954 |
| Docket Number | No. 2,No. 44268,44268,2 |
| Citation | 273 S.W.2d 340 |
| Parties | May J. CLEARY (Plaintiff), Appellant, v. Edward P. CLEARY, Jane K. Cleary, and Charles C. Cieary (Defendants), Respondents |
| Court | Missouri Supreme Court |
Chas. L. Graham, Christian F. Stipp, Graham & Stipp, Carrollton, for appellant.
W. A. Franken, John Franken, Carrollton, for respondents.
This is a suit in two counts in which the plaintiff asks that two certain deeds be set aside and declared null and void and of no effect, and that title to the lands described in the deeds be vested in her.
Plaintiff, May J. Cleary, is a spinster now 71 years of age, who was living alone at the time of the trial on a part of the land in question, which is located about a mile east of the town of Norborne in Carroll County, Missouri.
The defendants are plaintiff's brother, Charles C. Cleary; a nephew, Edward P. Cleary; and the latter's wife, Jane K. Cleary.
Defendant Edward P. Cleary is the son of plaintiff's deceased half brother, James. Another brother, E. Pierce Cleary, died on October 12, 1952, some two and one-half months after the making of the deeds which plaintiff seeks to have avoided in this proceeding. The name of a married sister, Clara Lenzen, also appears throughout the case.
The land in question consists of a total of 240 acres, comprising two adjoining rectangular tracts of 120 acres each.
At the time of plaintiff's birth all 240 acres were owned by her father, James Cleary, and her mother, Emma Cleary. The family originally resided on the east 120 acres, and for that reason the east tract was always known and referred to as the home place. However in 1910 the father constructed a house on the west 120 acres, and moved his family, including plaintiff, into it. In the ensuing years this was plaintiff's residence, and it was here that she was living at the time of the trial in January, 1954.
Title to all the 240 acres remained unchanged until the father's death in 1922, whereupon the mother became the sole owner of the land, and so continued until her death in 1936. At this juncture, by will or otherwise, plaintiff became the owner of the home place or east 120 acres, while her sister, Clara Lenzen, became the owner of the west tract of 120 acres. With each of the tracts thus separately owned, the west 120 acres thenceforth became known as the Lenzen place, and was so referred to throughout the trial.
All through the years the entire 240 acres had been operated as a single farm, and this practice continued after the division of the two tracts upon the mother's death. During the period following the mother's death both tracts were managed by the bachelor brother, E. Pierce Cleary, who looked after all the business matters and paid each sister her proprotionate share of the rent. Plaintiff's relations with Pierce were very close, and the two of them made their home together until his death in October, 1952.
Clara Lenzen suffered with ill-health, and in February, 1952, sold her tract of land to plaintiff, who thus became the owner of the entire 240 acres.
Plaintiff had always done all of her banking business at the Citizens Bank in Norborne of which one Milton Heil was executive vice-president and cashier. Heil had been connected with the bank for some 13 or 14 years, but he and plaintiff had known each other throughout his entire life. Plaintiff reposed trust and confidence in him, and consulted him about all of her business affairs, including the execution of her will, which he had rewritten for her at several different times as she had seen fit to make changes in it regarding the disposition of her property.
By the terms of her will, which had been executed prior to her purchase of the Lenzen place, plaintiff had made provision for the disposition of the home place, but of course had made no provision for the disposition of the Lenzen place which she did not own at the time. According to her testimony, she had directed that the home place by devised to her brother Pierce for his lifetime, and then to her brother Charles of his lifetime, and at Charles' death of her nephew, Edward, and his wife, Jane, absolutely. Following the home place be devised to her brother destroyed her will which had become insufficient for the disposal of her entire estate; and she had no will at the time of the making of the deeds which are the subject of the instant controversy.
It would appear that plaintiff had always been on good terms with both Edward and Jane, at least up until the time of Pierce's death, after which, according to plaintiff, they never visited her again, although she was in their home on several occasions and had no complaint about her reception. While difficulty within the family circle over the disposition of plaintiff's property had seemingly been brewing for some little time, it was not until after Pierce's death that matters reached a climax culminating in the institution of the present suit only 10 days later. In other words, it was the necessity for taking sides that was responsible for whatever change in attitude ensued, and Edward elected to follow the lead of his Uncle Charles, between whom and plaintiff there was evidently a marked dislike. Certainly, prior to the break, it had been plaintiff's desire that Edward and Jane should be the ultimate objects of her bounty as had been evidenced by the terms of her will, devising them the home place, subject to life estates in her two brothers, at a time when the home place was all she owned. Her acquisition of the Lenzen place of course rendered it desirable that she make arrangments for its disposition; and she admitted that she had promised Edward to give the Lenzen place to him, but insisted that she had made no mention of where she intended the home place to go.
The two deeds which plaintiff seeks to have set aside were general warranty deeds, the one purporting to convey the home place to Pierce for life, and then to Charles for life, and then to Edward and Jane absolutely; and the other purporting to convey the Lenzen place to Edward and Jane, without mention of either Pierce or Charles.
Each deed reserved to plaintiff the right to the possession and use of, and all income derived from, the particular real estate conveyed for and during her natural life.
The first count of the petition prayed for the cancellation of the deed to the home place, while the second count prayed for the cancellation of the deed to the Lenzen place.
Plaintiff made no charge of fraud in her eptition, but instead based her claim for relied upon the proposition that there was no lawful delivery of the deeds, both of which she admittedly signed, although it was her contention that the only deed she had intended to sign was the one to the Lenzen place, and that she had not known or realized that she was also signing a deed to the home place.
Defendants joined issue with plaintiff upon the question of whether there had been a lawful delivery of the deeds.
The court found the issues against plaintiff, and in favor of defendants, upon both counts of the petition. In due time plaintiff filed her motion for a new trial, and the same being overruled, she gave notice of appeal, and by subsequent steps has caused the case to be transferred to this court for its review.
The evidence disclosed that on the morning of Auguest 1, 1952, plaintiff went to the bank and enlisted Heil's assistance in the preparation of either a deed to the Lenzen place alone, or of deeds to both the Lenzen place and the home place, depending upon whose version of the facts is to be believed. Plaintiff testified that all she asked of Heil was that he make out a deed conveying the Lenzen place to Edward, and that she did not mention the home place at all. On the other hand, Heil testified (after prefacing his statement with the qualification that it had been 'quite some time ago') that as he recalled the incident, plaintiff had wanted deeds prepared whereby she would deed a part of her property to Edward and Jane, and another part to Pierce and Charles (for the lifetime of each) and then to Edward and Jane, subject in each instance to the retention of a life estate in herself.
Heil testified further that plaintiff brought along with her 'some old deeds or abstracts or something' from which he might obtain a description of the property to be conveyed, and that he had not had possession of any other of her papers or had access to her box in the bank. Plaintiff denied that she had taken any papers to Heil on the morning in question, but stated that she had taken her deed and abstract to him on a previous occasion, and remembered giving them to him to put in her box.
It appears that Heil had been too busy to comply with plaintiff's request immediately, but some time later had a stenographer type the deeds from notes he had allegedly taken down during his conversation with plaintiff, and then in the afternoon called plaintiff at the home of friends where she was waiting and informed her that tings were ready for her signature. She thereupon returned to the bank and admittedly signed two separate papers, but gave as her explanation for signing two papers that inasmuch as she had asked for the preparation of but the single instrument, she had assumed that the two papers together constituted the deed to the Lenzen place. She testified that before she signed the papers Heil read 'something' to her, and later in her testimony stated more specifically that Heil read one paper to her, which she informed him was exactly as she wanted it. She had no recollection of him reading a second paper. Heil testified for his part that he read both deeds to her, and that when she expressed her satisfaction with them, he had her sign them and then took her ackowledgment as notary public. He testified further that since he and plaintiff had gone over the...
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...delivery “gives the instrument force and effect” and signifies an intention “to pass immediate title to the grantee.” Cleary v. Cleary, 273 S.W.2d 340, 345, 346 (Mo.1954) ; Wilkie v. Elmore, 395 S.W.2d 168, 172 (Mo.1965). And, generally, under Missouri law, “(w)hen a deed conveying a fee re......
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