Deer v. King

• Decision Date: 09 July 1930
• Docket Number: 29192
• Citation: 30 S.W.2d 980
• Parties: DEER v. KING et al
• Court: Missouri Supreme Court

30 S.W.2d 980

DEER v. KING et al

No. 29192

Supreme Court of Missouri, First Division

July 9, 1930

Motion for Rehearing Overruled September 4, 1930.

C. R Fowler and C. D. Stewart, both of Edina, for appellant.

J. C Dorian and W. E. Cottey, both of Edina, for respondents.

OPINION

RAGLAND, J.

This is a suit in equity to set aside a deed for the conveyance of land. The deed in question was signed and acknowledged by plaintiff, Jane Deer, on the 8th day of November, 1922. On that date she owned and occupied a farm of 160 acres in Knox county, her ancestral home where she had always lived. She was then seventy-eight years old; she had never married; her three sisters, Nancy Norris, Elizabeth Smith, and Ruth King were her presumptive heirs. By the deed here in controversy she purported to convey her land to the sisters just named, reserving to herself a life estate. By her bill, brought against two of the sisters and the heirs of one since deceased, she seeks to have the deed set aside on three grounds: (1) It was not delivered by her; (2) it was without consideration; and (3) it was never accepted by the persons named therein as grantees. The relevant facts, as disclosed by the evidence, will be summarized.

Plaintiff offered in evidence two documents, the deed referred to in the petition and a promissory note. The deed, in form a general warranty, bore date October 21, 1922, and recited that it was made in consideration of the sum of $ 6,000 which the grantor had received. It also contained the following recitals:

'The first party herein reserves the use, rents and profits on said land so long as she lives.

'This deed is executed for the purpose of mutual division of the property.'

The note bore date October 20, 1922; it was signed by Elizabeth Smith and Ruth King as makers; according to its purport they promised to pay to Jane Deer one day after the date the sum of $ 6,000 with interest from -- at the rate of -- per cent. per annum. On the back of the note there was the following indorsement which had been signed by Jane Deer: 'If this note is not paid at my death it is null and void.'

Plaintiff introduced but two witnesses, Joe King and herself. We will endeavor to state the substance of Mr. King's testimony in narrative form (in the third person).

King was the husband of defendant Ruth King, and consequently a brother-in-law of the plaintiff. He was also plaintiff's agent for the transaction of her business generally from some time in the year 1917 until December 8, 1926. In the latter part of October, 1922, pursuant to instructions he had received from plaintiff, he caused Judge Fowler of Edina, Mo. (the county seat of Knox county), to prepare the deed and note above described. These he delivered to plaintiff. She subsequently, in company with her sister Elizabeth Smith, took the deed to Novelty, a nearby town, and acknowledged it before a notary public. On the same day, November 8, 1922, she gave the deed and the $ 6,000 note to King with directions to present the note to her sisters for their signatures and to deliver the deed to them when they had signed the note. King secured the signature of his wife to the note immediately; on November 9th following he took the note to Mrs. Smith and left it with her with the request that she sign it and that she have Mrs. Norris also sign it. He did not in person present the note to Mrs. Norris for her signature because they were not on good terms. On November 11th following, without knowing whether the note had been signed by Mrs. Smith and Mrs. Norris, King filed the deed on record. He did this, he says, because he was sure that the two women would sign. Ten days or two weeks later he called on Mrs. Smith to see if she and Mrs. Norris had signed the note and found it without the signature of either, Mrs. Smith saying, 'I don't believe I will sign it.' He then took it home and 'put it with Jane's papers.' Apparently nothing more was said or done about either the note or deed for three or four years.

In the latter part of the year 1926, King, with plaintiff's full knowledge and consent, offered to buy the interests of Mrs. Smith and Mrs. Norris in the land, or to sell them his wife's interest, or to divide the land. In that connection, and on November 4, 1926, he wrote Mrs. Norris as follows:

'I thought I would write you in regard to your interest in the old home place after Jane gets through with it, if you three girls could adjust this matter it will save quite an expense to who may follow you three. We will give you and Betty $ 5000 for your two interests or Ruth will take $ 2500 for her interest or be willing to divide the land if it suits you two women, and if you want to sell your interest for $ 2500 will pay after the first day of March 1927 and you can buy Ruth's interest the same I offered you. It would suit us the best to divide the land than to buy it. We are getting most to old to go in debt for debts are hard to pay these days. Now if we should buy your interest or should agree to divide the land we do so knowing that Jane has the right to the rents and profits during her life time.'

A few days later, on December 16, 1926, plaintiff wrote the following letter to Mrs. Smith:

'Dear Sister Bettie: I am writing to Nan to answer my last letter and say what she wants done with the place here. If she wants it sold or the land divided I do not want it to go to strangers hands. If one of us old people should die it would have to probated. I do not want it to go to law. Joe says he will not fix any more fences or fill up any more ditches for you and Nan on this place. There is two fether beds you and Nan ought to get if you want them. One is old feathers just as mother...