Cloves v. Cloves

• Decision Date: 14 March 1922
• Docket Number: No. 22489.,22489.
• Citation: 239 S.W. 145
• Parties: CLOVES v. CLOVES et al.
• Court: Missouri Supreme Court

239 S.W. 145

CLOVES v. CLOVES et al.

No. 22489.

Supreme Court of Missouri, Division No. 1.

March 14, 1922.

Appeal from Circuit Court, Camden County; C. H. Skinker, Judge.

Action by Bruno Cloves against Della Cloves and others. From a decree in favor of defendants, plaintiff appeals. Affirmed as modified.

Sid C. Roach, of Linn Creek, and Herman Pufahl, of Bolivar, for appellant.

H. W. Chalfant, of Linn Creek, for respondents.

SMALL, C. I.

Appeal from the circuit court of Camden county. Petition in three counts: First, to cancel deed to 40 acres of land made by plaintiff to his deceased son, William Cloves, for the alleged reason said deed was never delivered, but was surreptitiously taken from plaintiff's possession and put on record. Second, that when plaintiff executed said deed he intended to make, and was informed and believed that he was making a will, and not a deed, and that plaintiff never delivered said deed, or authorized it to be put upon record. Prayer on each count is that the deed be canceled. The third count is to quiet title in conventional form.

The defendants are the widow and children of said deceased son of the plaintiff. Said children, being minors, answered by their guardian ad litem. The widow, Della Cloves, fled separate answer. The answers put the allegations of the petition in issue, except that they admitted the execution of the deed sought to be set aside, and affirmatively asked the court to declare said deed valid and vesting the title in the defendants as the widow and heirs of said William Cloves, deceased, subject to plaintiff's right to a home reserved in said deed.

At the trial, on objection of the defendants that William Cloves, the other party to the deed, was dead, the court excluded the offer of the plaintiff himself to testify that at the time said deed was executed both he and his son, William, supposed and understood said deed was a will, and that after it was executed plaintiff retained the deed, never delivered it to his son, nor to any one for him, never authorized the delivery of the deed to any one, and that there was no consideration for the deed. The deed was offered in evidence by plaintiff. It was a general warranty deed, dated April 5, 1911, made by Bruno Cloves and Lucy Cloves, husband and wife, grantors, to William B. Cloves, grantee, for the expressed consideration of $1,000, paid by grantee to grantor. After the description of the 40 acres and before the habendum clause, was the following:

"Subject to a trust deed to secure note of $300; said land to still remain as security together"

—with 120 acres adjoining, which is described, also giving date and place of record of deed of trust. After the word "whomsoever" at the close of the covenants of general warranty, the following clause appears:

"Except as above stated and the grantor reserving a rite to a home thereon, during their natural lives."

Then follows the witness or attestation clause; the grantors making their mark for their signatures. The deed also purports to be signed and delivered in the presence of Celestial Shipman. It was duly acknowledged on April 15, 1911, by both grantors before J. W. Williams, justice of the peace, and filed for record April 22, 1911.

Both Shipman, the witness, and Williams, the justice who took the acknowledgment, were witnesses for plaintiff, and both testified that both the plaintiff and his son, William, the grantee at the time the deed was executed, said that the deed or paper was a will of the plaintiff, willing the property to his son, William. Justice Williams testified: That he read the deed over to the grantor, and told him repeatedly that he was wrong, that the paper was a deed, but that he could not argue the plaintiff out of his position that it was a will. At first Williams stated that the deed was all filled up by some other person and that he simply read over to the plaintiff and took his acknowledgment. That plaintiff was in feeble condition and somewhat deaf at the time, and he could not make him understand that the document was a deed, although he did his best to do so. No money passed to the knowledge of Shipman or Williams. But, being recalled, Williams testified that he filled up the deed and wrote all that was written in it, except the description of the property and the reference to the mortgage on it and the adjoining 120 acres. He testified that he wrote in the last clause, reserving the right to a home for the grantors, during their natural lives. Angeline Burch testified that a few days before the deed was made she heard the plaintiff, his wife, and William talking about plaintiff willing the land to William.

After the death of William, which was a few years before this suit was instituted, the plaintiff paid off a mortgage which he and William had executed on the 160 acres to secure $385 which the plaintiff borrowed from the county to pay off the $300 mortgage referred to in the deed.

On the part of the defendants there was testimony that, before signing the deed in question, both the plaintiff and his son William went to the office of the witness Chalfant, who held the $300 mortgage on the 160 acres, and plaintiff told Chalfant that plaintiff was going to deed, or make a conveyance of, 40 acres to his son William, and requested Chalfant to draw up the paper; that Chalfant procured a blank form of warranty deed, and made and gave them a memorandum of the description of the property and the clause making it subject to his $300 deed of trust. He did not write or fill up the deed, but told the plaintiff and William that he did not have time to attend to it, and that they must get somebody else to do it. They then left Chalfant's office, taking the blank deed and memorandum with them.

There was also testimony on the part of the defendants that during William's lifetime the plaintiff told several witnesses that he had deeded the land to William, also that William, at different times, rented out the land and collected the rent therefor. At the time the deed was made, there was a double log house on the property, which was occupied by the plaintiff and his wife until she died, which was some time before William died. Before the deed was made, a few years before, the evidence tended to show that William built a frame house, a barn and fences and drilled a well on the 40 acres, which was the only part of the 160 acres that was tillable. After the death of William both the plaintiff and the widow of William, defendant Della Cloves, claimed the right to rent out the land. There was evidence for defendant that the plaintiff was a Belgian, but had lived In this country many years, having been a federal soldier, and that he received a pension from the government; that while he was somewhat deaf, he could hear and understand what was said to him. At the time the deed was made plaintiff had no other children, but had another...