Dodd v. Turner

• Decision Date: 16 December 1941
• Docket Number: 37712
• Citation: Dodd v. Turner, 156 S.W.2d 901, 348 Mo. 1090 (Mo. 1941)
• Parties: Margaret Christine Dodd v. Malcolm Turner and Robert Lee Turner, as individuals and as executors of the last Will and Testament of Dr. R. L. Turner, Thomas Mitchner and Francis Pennington, Appellants
• Court: Missouri Supreme Court

156 S.W.2d 901

348 Mo. 1090

Margaret Christine Dodd v. Malcolm Turner and Robert Lee Turner, as individuals and as executors of the last Will and Testament of Dr. R. L. Turner, Thomas Mitchner and Francis Pennington, Appellants

No. 37712

Supreme Court of Missouri

December 16, 1941

Appeal from Butler Circuit Court; Hon. Robert I. Cope Judge.

Affirmed.

Tedrick & Tedrick and J. F. Woody for appellants.

(1) Any material alteration of an instrument, after the execution thereof, intentionally caused directly or indirectly by the owner or holder thereof, or by one having a beneficial interest therein, without the consent of the party sought to be charged thereon, renders it void as between such non-consenting parties and the person responsible for the alteration, and those claiming under him. 2 Am. Jur. 601; Bank v. Fricke, 75 Mo. 178; Bank v. Bangs, 42 Mo. 450; Trigg v. Taylor, 27 Mo. 245; Aubuchon v. M'Knight, 1 Mo. 312. (2) This is true of deeds, deeds of trust, or other instruments affecting, or purporting to affect, the title to real estate. Carson v. Woods, 177 S.W. 623; Kalbach v Mathis, 78 S.W. 684; Frazier v. Cook, 204 S.W 392; Barnhart v. Little, 185 S.W. 174; Handt v. Pipe Line Co., 85 S.W.2d 202; Kempf v. Pipe Line Co., 61 S.W.2d 422; Kelly v. Tuey, 143 Mo. 422, 43 S.W. 302. (3) Any alteration of an instrument which destroys the identity of the instrument or contract evidenced thereby, or which so changes the terms as to give it a different legal effect from that which it originally had, and thus works some change in the rights, obligations, interest, or relations of the parties is material. 2 Am. Jur. 599 (7) and cases cited; Paxton v. Casket Co., 223 Mo.App. 151, 9 S.W.2d 856; Bruegge v. Bank, 74 S.W. 835. (4) Where an instrument appears on its face to have been altered or its appearance is suspicious, it must be explained, and the alteration shown to have been made before execution and delivery, or with the consent of the parties. Home Trust Co. v. Josephson, 95 S.W.2d 1148; Stilwell v. Patten, 108 Mo. 352; Meffert v. Lawson, 289 Mo. 337; Lampe v. Franklin Trust Co., 95 S.W.2d 710; Little v. Mettee, 95 S.W.2d l. c. 1007; Sprinkler Co. v. Packing Co., 93 S.W.2d 1053. (5) The burden was on plaintiff satisfactorily to explain the alterations in this deed. Kelly v. Rhuey, 145 Mo. 432. (6) A material alteration in an instrument after delivery is prima facie fraudulent. Parker v. Staley, 55 S.W.2d 332; Witmer v. Frye, 10 Mo. 221; Mach. Co. v. Blair, 146 Mo.App. 374. (7) If plaintiff intentionally and purposely altered this deed, she will not be permitted to recover on the deed as it originally stood, if that could now be ascertained, as it is rendered void for any and all purposes. Wood v. Steele, 6 Wall. 80; Frazier v. Cook, 204 S.W. l. c. 392; Haskell v. Champion, 30 Mo. 138.

David W. Hill for respondent.

It was possible and the trial judge did, by inspection, ascertain the estate conveyed by the deed -- saw and read the whole deed, and rendered judgment in accordance with the finding. The judgment is likewise supported by these facts: 1. The undisputed evidence shows that respondent had title to the whole farm by more than ten years' adverse possession; 2. The ink splotches were accidental; 3. The remaindermen are not parties to this suit and the deed could not be nullified. Potter v. Adams, 125 Mo. 118; Branner v. Klaber, 330 Mo. 306, 49 S.W.2d 169; Stephens v. Fowlkes, 338 Mo. 531, 92 S.W.2d 617.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

Plaintiff filed this an ejectment suit to obtain possession of about one hundred and sixty acres of land situated in Butler county, Missouri. The defendants filed an answer in which they asked the court to cancel a deed under which plaintiff claimed title. They also, by their answer asked the court to try and determine title of the respective parties in and to the land described in plaintiff's petition. The trial court entered a judgment for plaintiff and defendants appealed.

Plaintiff and the defendants, Malcolm Turner and Robert Lee Turner, are children and the only heirs at law of Dr. R. L. Turner, deceased. The defendants, Malcolm Turner and Robert Lee Turner, were sued individually and as executors of the last will and testament of R. L. Turner, deceased. Thomas Mitchner and Francis Pennington were made defendants because they were occupying the land. Plaintiff claimed a fee simple title to the land under a deed executed by her father, dated September 20, 1921, and recorded January 6, 1940. R. L. Turner, by his last will and testament, devised one-third of the residue of his estate to each of the defendants, Malcolm and Robert Lee Turner, and the other one-third to the said defendants to be held in trust by them for plaintiff's benefit. Plaintiff was to receive the income from the property during her life and at her death the property was to descend to her children. In case plaintiff left no issue the property was to go to plaintiff's brothers. The defendants claim title to the land under the terms of the will of their father. Defendants in their answer further alleged:

"For another and further answer to said petition these defendants state and aver that whatever title, or right of possession plaintiff may have, other than as devisee under the will of Dr. R. L. Turner in or to the real estate described in her petition, arises by reason of a certain deed from Dr. R. L. Turner to her, dated September 20th, 1921, and recorded on the 6th day of January, 1940.

"Defendants state that said deed, while in her possession, was by plaintiff so materially altered, changed, mutilated and disfigured that it is now impossible, by an inspection thereof, to determine the character of the estate, if any, intended to be, and which was conveyed to plaintiff by said Dr. R. L. Turner, and defendants say that, by reason of such alterations, changes, mutilations and disfigurements, thereof so made by plaintiff, as aforesaid, said deed is rendered void as a conveyance, and that no title is vested in plaintiff thereunder."

The original deed was filed in this court. On the face thereof appear large spots of ink. One of these appears immediately after the grantee's name, Margaret Christine Turner. It was claimed that the words "and the heirs of her body" were blotted out by plaintiff so as to make the deed appear to convey to plaintiff an absolute fee when in fact the deed, as written, conveyed to plaintiff only a life estate with remainder to the heirs of her body. Plaintiff testified that the words "and the heirs of her body" did not appear in the deed; that ink was accidently spilled on the instrument. Plaintiff's husband, Virgil Dodd, corroborated plaintiff in her evidence. The plaintiff's mother, who had been divorced from the testator many years ago, testified that she saw this deed and had it in her possession before it bore any ink spots. She testified further that the words "the heirs of her body" did appear in the deed after the grantee's name; that the daughter on one occasion had told her she was going to fix the deed so she could borrow some money. The evidence revealed that plaintiff and her mother were not on friendly terms. The trial court by its decree found that plaintiff was, under the terms of the deed, "the owner of a life estate only, with the remainder to the...