Coles v. Belford

• Decision Date: 11 July 1921
• Citation: 232 S.W. 728,289 Mo. 97
• Parties: H. S. COLES et al. v. ANNA BELFORD et al., Appellants
• Court: Missouri Supreme Court

232 S.W. 728

289 Mo. 97

H. S. COLES et al. v. ANNA BELFORD et al., Appellants

Supreme Court of Missouri, First Division

July 11, 1921

Appeal from Greene Circuit Court. -- Hon. Guy D. Kirby, Judge.

Affirmed.

J. O Patterson, A. E. Butters and Patterson & Page for appellants.

(1) A deed, regular on its face, with acknowledgment formally correct, found in possession of the grantee, is prima-facie valid, and the burden is upon plaintiffs to show its invalidity. R. S. 1909, sec. 2818; Bohan v. Casey, 5 Mo.App. 101; Harvey v. Long, 260 Mo. 374; Elliott v. Sheppard, 179 Mo. 382. (2) Before a deed prima-facie valid can be declared invalid, the evidence of its invalidity should be clear, satisfactory, and convincing and there should be a decided preponderance in favor of its invalidity. Barrett v. Davis, 104 Mo. 549. (3) The recitals of the deed, together with the testimony of the notary public who took the acknowledgment, show a sufficient delivery. Harvey v. Long, 260 Mo. 374; Cook v Newby, 213 Mo. 471; Miles v. Robertson, 258 Mo. 717; Standiford v. Standiford, 97 Mo. 231; Fenton v. Fenton, 261 Mo. 202; Potter v. Barringer, 236 Ill. 224. (4) The admission of the diary of Mrs. Wilson was error, and the letters of Mrs. Phelps after date of deed tending to show acts of ownership, though admitted without objection, have no probative force, being in the nature of self-serving statements. Elliott v. Sheppard, 179 Mo. 382; O'Day v. Realty Company, 191 S.W. 41; Townsend v. Schaden, 275 Mo. 227.

M. C. Smith, R. Magoon Barnes, Jay H. Magoon, Kirk Hawkins, and Wallace J. Black for respondents.

(1) The evidence shows there was no sufficient delivery of the deed in question to divest Carrie S. Phelps of the title and vest the same in Anna and Mary Belford. Miller v. Lullman, 81 Mo. 316; Tyler v. Hall, 106 Mo. 313; Hall v. Hall, 107 Mo. 101; Tobin v. Bass, 85 Mo. 654; Staniford v. Staniford, 97 Mo. 231; Sneather v. Sneather, 104 Mo. 201. (2) Mrs. Wilson's diary was competent evidence. Elliott v. Sheppard, 179 Mo. 582. (3) Where the evidence is contradictory and conflicting, this court has repeatedly deferred to the decision of the lower court. Jones v. Thomas, 218 Mo. 540; Brecker v. Fillingham, 209 Mo. 583; Huffman v. Huffman, 217 Mo. 182. When the question of delivery arises between a grantor and a grantee, it is to be determined by a preponderance of evidence. 1 Devlin on Real Estate (3 Ed.), sec. 263b, p. 393.

OPINION

ELDER, J.

This is a suit in equity to set aside a deed executed by Carrie S. Phelps, now deceased, conveying certain real estate located in the City of Springfield, Missouri.

Plaintiffs H. S. Coles and B. F. Shafer are nephews of Mrs. Phelps, and plaintiff Marie Porterfield is a niece. Defendants Anna Belford, Mary Belford and George F. Belford are nieces and nephew, respectively of Mrs. Phelps, and the remaining defendants are her collateral heirs at law.

Mrs. Phelps had a sister, Mrs. Belford, the mother of defendants Anna, Mary and George F. Belford, and a brother, Frank D. Shafer, both of whom lived near Lacon, Illinois. In November, 1909, the sister died, and Mrs. Phelps, who then resided in Springfield, went to attend the funeral. After the funeral she lived with defendants Anna and Mary Belford off and on for about two and one-half years, when she built a log cabin on the farm of her brother, near his house, and resided there up until the time of her death.

The deed in controversy is a special warranty deed, dated January 17, 1910, conveying to defendants Anna Belford and Mary Belford a house and lot in Springfield, valued at $ 10,000, which for a long time prior to November, 1909, had been occupied by Mrs. Phelps as a home. The deed purports to have been acknowledged in Marshall County, Illinois, on January 17, 1910, before defendant George F. Belford, a notary public and brother of the grantees, the acknowledgment reciting that the grantor acknowledged "that she signed, sealed and delivered the said instrument as her free and voluntary act." The recited consideration is $ 1000, but it is conceded that the same was not paid. The instrument contains a release and waiver of the right of homestead, and warrants the promises as against all persons, claiming by, through or under the grantor. On cross-examination, over objection by counsel for plaintiffs, E. N. Ferguson, banker and advisor of Mrs Phelps in business matters, and a witness for plaintiffs, testified that the signature to the deed was that of Mrs. Phelps.

The testimony of defendant George F. Belford relative to the execution and delivery of the deed was to the effect that on Saturday, January 15, 1910, he was requested to come to the home of his sisters, Anna and Mary Belford, near Lacon, Illinois, where Mrs. Phelps was then living; that "Mrs. Phelps desired I should come down there and made a deed for her;" that when he arrived both of his sisters and Mrs. Phelps were there, and he had some talk with Mrs. Phelps about the matter of making the deed; that on the following Monday, January 17th, the deed was written by witnesses, Anna and Mary Belford and Mrs. Phelps being present at the time; that Mrs. Phelps "had another old deed of the property, she read one and I read the other one, she told me what to put in;" that "I had Aunt Carrie, Mrs. Phelps, to sign it, and then she acknowledged it; first before that I read it over to her."

"Q. Now after the deed was acknowledged by her as you have stated, what did she do with it, if anything? A. She gave it to Anna Belford and said to put it in her box.

"Q. Whose box? Anna Belford's box; she says, 'You take this and put it in your box and keep it and whenever anything happens you send it to Springfield, Missouri, and have it recorded.'

"Q. Which one of your sisters took the paper? A. Anna, I think. --

"By The Court: She told your sister to take the deed and put it in her box? A. Yes, sir, and keep it and whenever anything happened to her, when she died, to send it to Springfield, Missouri, and have it recorded. . . .

"Q. Did she sign that deed in your presence? A. Yes, sir.

"Q. And delivered it to Anna Belford in your presence? A. They was sitting down by the table and she signed the deed right there; she handed the deed to me and I wrote the acknowledgment, and I handed it back to her and she handed it to Anna Belford.

"Q. I will ask you to state to the court what her mental and physical condition was at that time, whether it was good or otherwise? A. She was in pretty good mental condition at that time, and understood everything she was doing.

"Q. What was done there in the drafting of the deed was done at her direction? A. Yes, sir, everything that was done there was done under her direction.

"Q. How old was she at that time? A. She was seventy-five or seventy-six. --

"Q. There was no consideration paid for this deed? A. I didn't see any paid for it.

"Q. Why did you put in the deed an alleged consideration of $ 1000? A. Aunt Carrie told me to put it in there; I says, 'What will I put in here?' and she said, 'Put in $ 1000.'

"Q. Did she understand it was a gift? A. That is what I understood it.

"Q. Did she tell you why she wanted to make the deed? A. She said she wanted to give the property to the girls, wanted them to have it."

There was no other evidence bearing upon the execution and delivery of the deed.

There was testimony for plaintiffs that on January 3, 1910, Mrs. Phelps, accompanied by plaintiff Marie Porterfield, returned to Springfield, Missouri, where they both remained until the latter part of February, 1910, and that while there Mrs. Phelps had some improvements made on the property conveyed by the deed in controversy, such as having bathroom fixtures installed and sewer connections made. There was testimony for defendants that Mrs. Phelps did not make this trip until March 1, 1910, and that during the entire months of January and February, 1910, she was at the Belford girls' home near Lacon, Illinois.

Carrie S. Phelps died January 14, 1917. At that time defendant Anna Belford had possession of the deed in suit, and sent it to Springfield, where it was filed for record in the office of the Recorder of Deeds for Greene County on January 18, 1917.

The foregoing for the present sufficiently outlines the facts in the case. Other matters which may be pertinent to the appeal will be referred to in the course of the opinion.

The petition alleges that Carrie S. Phelps was the owner of the property in question and had occupied the same for many years; that after her removal to Illinois she had received the rents therefrom, paid taxes and insurance thereon and made extensive repairs thereto; that there had been filed for record a deed "purporting to have been executed on the 17th day of January, 1910, by said Carrie S. Phelps, conveying said described lands to defendants Anna Belford and Mary Belford;" that "said pretended deed was acknowledged before one George F. Belford." Proceeding, the petition further alleges as follows:

"Plaintiffs further allege that said notary public, George F. Belford being related to said Anna Belford and Mary Belford, grantees in said alleged deed, unlawfully combined, confederated and conspired with them, the said alleged grantees, to procure and did obtain said fraudulent conveyance and deed for the unlawful purpose of procuring the title to said described lands without paying any consideration therefor, and in truth and fact no consideration whatever was paid to said Carrie S Phelps or to anyone for her, and by fraud and false representations made to her by said defendants, Anna Belford, Mary Belford and George F. Belford, when her mind was in such condition that she did not comprehend the nature of the act, said Carrie S....