Dallas v. McNutt

• Decision Date: 05 March 1923
• Docket Number: No. 23080.,23080.
• Citation: 249 S.W. 35,297 Mo. 535
• Parties: DALLAS v. McNUTT et al.
• Court: Missouri Supreme Court

249 S.W. 35

297 Mo. 535

DALLAS v. McNUTT et al.

No. 23080.

Supreme Court of Missouri, Division No. 1.

March 5, 1923.

Appeal from Circuit Court, Cass County; Ewing Cockrell, Judge.

Action by George M. Dallas against E. L. McNutt and others. Judgment for defendants, and plaintiff appeals. Affirmed.

G. R. Chamberlain and W. D. Summers, both of Harrisonville, and G. M. Summers, of Pleasant Hill, for appellant.

J. S. Brierly and T. N. Haynes, both of Harrisonville, for respondents.

RAGLAND, J.

This proceeding was originally commenced before a justice of the peace as an action for rent against the defendant McNutt, as tenant. It was certified by the justice to the circuit court, on the ground that the title to real estate was involved. The real estate giving rise to the controversy, a dwelling house and an acre of ground in Pleasant Hill, Mo., was formerly owned by Civilla J. Denton, who died about January 1, 1920. In the circuit court her administrator and heirs were made parties defendant and permitted to file answers and cross-bills. The cross-bill of the administrator alleged, among other things, that Civilla J. Denton at the time of her death was the owner in fee simple of the real estate just referred to; that she died intestate; that he, as her administrator, had inventoried said real estate as the property of her estate; that the personal estate being insufficient to pay the debts allowed against the estate, the probate court had ordered him to take charge of said real estate and rent it; and that in compliance with such order he had leased it to the defendant McNutt. It also alleged that whatever right, title, or interest the plaintiff claimed in said real estate was derived through a certain so-called deed, purporting to have been executed by Civilla J. Denton and Joseph Denton, her husband, to C. W. Dobbins, on January 10, 1905, and recorded January 14, 1920; that said pretended deed transferred no title because: (1) It was testamentary in character; (2) it was never delivered; and (3) it operated as a fraud upon creditors. The cross-bill further alleged that, by reason of said pretended deed being of record, the administrator was unable to sell the real estate to pay debts pursuant to an order of the probate court, and that it constituted a cloud upon the title. The prayer was that the alleged deed be canceled and for naught held, and that the rights of the respective parties in and to said real estate be defined and adjudged. The other defendants adopted the answer and cross-bill of their codefendant, the administrator.

By his reply plaintiff put in issue the allegations of the cross-bill with respect to infirmities of the deed from Mrs. Denton to Dobbins.

On January 10, 1905, Mrs. Denton owned the property in controversy; her husband, Joseph Denton, also owned several residence properties in Pleasant Hill. A daughter, Mrs. Elmore, and two grandchildren, Dobbins and a Mrs. Hawkins, were their ostensible "heirs. On the date just mentioned, they signed and acknowledged three deeds: One to Dobbins, purporting to convey Mrs. Denton's property; one to Mrs. Elmore; and one to Mrs. Hawkins, the last two purporting to convey the property belonging to Joseph Denton. Within a short time thereafter Joseph Denton appeared at one of the banks in Pleasant Hill with the three deeds. These he handed to an officer of the bank and in that connection said "at the death of him and his wife that the deeds were to be turned over to the people they belonged to."

The deed to Dobbins, the one involved here, was a general warranty deed, conforming in all respects to the form of such deeds in general use in this state, except that, immediately following the description of the property, this clause was inserted:

"It being expressly understood and agreed, that first parties or either of them shall hold this deed and enjoy the above-described property as long as either of the said first parties shall live. When both of said first parties have died, then in that event this deed shall be delivered, by whomever shall get hold of same, to said C. W. Dobbins, and by him recorded for his sole and only use, the said property then and there to vest in him the C. W. Dobbins, absolutely and in fee simple."

Soon after the incident of the signing, acknowledging, and depositing of the deeds as just related, Dobbins took up residence in a part of the house on the lot described in the deed to him, his grandfather and grandmother occupying the other part. He continued to live there until 1918, with the exception of two years during which time he was away from Pleasant Hill. During his occupancy of the premises he "put a roof on the house, made some sidewalk, built a kitchen, * * * a wood and coal house, and some more sidewalk," all at his own expense. As to why he made these improvements Dobbins testified:

"They (his grandfather and grandmother) both told me to go ahead and improve the property in whatever way I wanted to; I wanted to put in things, improve the place; I spent four or five hundred dollars; they told me there was no other way for me to get it, but didn't do it."

At the time of the making of...