Douglass v. Hammel

• Decision Date: 05 April 1926
• Citation: 285 S.W. 433,313 Mo. 514
• Parties: ADA DOUGLASS et al. v. N. H. HAMMEL et al., Appellants. ADA DOUGLASS et al., Appellants, v. N. H. HAMMEL et al
• Court: Missouri Supreme Court

285 S.W. 433

313 Mo. 514

ADA DOUGLASS et al. v. N. H. HAMMEL et al., Appellants.

ADA DOUGLASS et al., Appellants, v. N. H. HAMMEL et al

Supreme Court of Missouri

April 5, 1926

Appeal from Dunklin Circuit Court; Hon. W. S. C. Walker Judge.

Affirmed.

Smith & Zimmerman for appellants.

(1) The trial court erred in finding and decreeing, after finding that the father and son entered into the contract alleged that plaintiffs were not estopped from claiming an interest in the land in suit, and in finding and decreeing that plaintiffs were the owners of an undivided one-fifth interest in the land in suit, because: (a) The quitclaim deed from Van B. Rice and wife to David Rice and the remaining heirs of David Rice operates as an estoppel against the plaintiffs. Schneider v. Schneider, 284 Mo. 214; Buckner v Amer, 120 N.E. 437; Hogensick v. Carton, 53 Nebr. 495; Martin v. Martin, 222 S.W. 291; 21 C. J. p. 1082, sec. 48. (b) There is ample evidence to support the finding of the court that the father and son entered into a contract whereby the son agreed not to inherit in the balance of the father's land if the father would give him the farm which was deeded to him. Brown v. Holman, 238 S.W. 1067; Fisher v. Davidson, 271 Mo. 204; Lynn v. Hockaday, 162 Mo. 124. (2) The quitclaim deed from the son to the father, if insufficient as an instrument of conveyance, and if insufficient to work an estoppel against plaintiffs, is competent evidence of the alleged agreement and may be considered, with other evidence in the case, in determining whether or not the contract, as alleged, was made. Kerr v. Smiley, 239 S.W. 503. (3) In construing the deeds offered in support of the contract, all the facts and circumstances surrounding the parties at the time may be considered. Tennyson v. Walker, 190 S.W. 12; Healey v. Simpson, 113 Mo. 340. (4) If there is substantial evidence to support the finding of the court that the contract alleged was made, and his finding is not against the weight of the evidence, this court will defer to and not disturb the finding of the chancellor. Craddock v. Jackson, 233 S.W. 929. (5) The contract entered into between the father and the son was fully performed on the part of the father, and the son, if living, would be estopped from claiming the land in suit; and, likewise, the plaintiffs, as children and heirs of Van B. Rice, the son, are estopped from claiming an interest in the land. Estate of Wm. G. Williamson, 62 Mo.App. 350; Johnson v. Autriken, 205 Mo. 244; Thistle v. Buford, 50 Mo. 281; Schneider v. Schneider, 284 Mo. 314; Hubbard v. Slavens, 218 Mo. 621; McFarland v. McFarland, 211 S.W. 27; Horton v. Troll, 183 Mo.App. 690; Ming v. Olster, 195 Mo. 472; Martin v. Martin, 222 S.W. 291; 21 C. J. 1110, sec. 110; 13 C. J. 713, sec. 822.

John T. McKay and L. R. Jones for respondents.

(1) The answer of the defendants having converted this cause into an action in equity, the Supreme Court on appeal will make its findings and render its judgment upon the competent evidence adduced at the trial and will ignore the incompetent evidence admitted. Pfotenhauer v. Ridgeway, 271 S.W. 50. (2) The court erred in admitting all of the oral evidence as to the intention of Van B. Rice and David Rice in the exchange of deeds in 1883, for the reason that such deeds were plain and unambiguous on their face, and required no parol testimony to give them their legal effect. Bloker v. Foley, 193 S.W. 561; Tygard v. Hartwell, 204 Mo. 205; Northrip v. Burge, 255 Mo. 668; Miles v. Robertson, 258 Mo. 725; 17 Cyc. 613. (a) All prior oral agreements and stipulations relative to the entering into of a contract are merged into the written instrument as executed by the parties, and no parol testimony is admissible to contradict, vary or modify the plain and unambiguous language employed in the written contract. Feren v. Inv. Co., 196 S.W. 435; Farmers State Bank v. Sloop, 200 S.W. 304; Gimbel Bros. v. Mitchell, 219 S.W. 676. (b) The proof adduced by the defendants to support their plea conclusively showed a different contract from the one pleaded. Hayworth v. Hayworth, 236 S.W. 26; Hinkle v. Hinkle, 236 S.W. 30. (4) The plaintiffs inherited directly from their grandfather David Rice, their father Van Rice having predeceased their grandfather; Van Rice never acquired any title to the property involved; and the learned trial court, in its finding that plaintiffs have an undivided one-fifth interest in the land involved in this controversy, was clearly correct. Barnum v. Barnum, 119 Mo. 63; Wattenbarger v. Payne, 162 Mo.App. 437; Sec. 303, R. S. 1919; Green v. Irvin, 274 S.W. 684. (3) The deed from Van B. Rice and wife to his father David Rice, being a mere quitclaim and not stating that it conveyed his interest as an expectant heir to the estate of his father, did not operate to convey any after-acquired title of the said Van B. Rice had he outlived his father; nor did the execution of said quitclaim deed estop the said Van B. Rice had he been living at the date of his father's death. Brawford v. Wolfe, 193 Mo. 391; Stoepler v. Silberberg, 220 Mo. 267; Bloker v. Foley, 193 S.W. 561; Mosier v. Carter, 84 Kan. 361, 35 L. R. A. (N. S.) 1182; Lewis v. Shearer, 189 Ill. 184; Glover v. Condell, 163 Ill. 566, 35 L. R. A. 371; Blanks v. Craig, 72 Ark. 80; Clendenning v. Wyatt, 54 Kan. 523, 33 L. R. A. 286; McClure v. Raben, 9 L. R. A. 479; Snyder v. Snyder, 235 S.W. 743.

OPINION

White, J.

These two cases represent cross-appeals in the same case. The plaintiffs brought suit in the Circuit Court of Dunklin County, their petition in two counts, the first to determine title to a tract of land consisting of 165 acres in Dunklin County and the second seeking partition of the land.

The plaintiffs are the children and heirs of Van B. Rice, who died intestate in November, 1906. He was the son of one David Rice who survived him and died in December, 1910, leaving a widow, who died in 1918, and four living children. The defendants claim by conveyances from the four children who survived David Rice. The plaintiffs, as the heirs of Van B. Rice, claim an undivided one-fifth interest in the land, on the ground that they, the grandchildren of David Rice, inherit the share which would have belonged to their father had he outlived their grandfather.

The answer filed by the defendants alleged that in 1883 Van B. Rice, then a minor, was married; that his father, David Rice, owned the land in controversy here and a tract consisting of 72.5 acres situated in Dunklin County, which he conveyed to Van B. Rice on condition that Van B. "would accept the same as his share of his father's estate and relinquish his right to inherit any part or portion of the balance of the land owned by David Rice." That on December 13, 1883, the agreement was consummated and David Rice and his wife conveyed to Van B. the tract of 72.5 acres, and Van B. and his wife by a quitclaim deed relinquished to David Rice and his remaining heirs and assigns the land described in the petition; that Van B. went into possession of the land conveyed to him and occupied it until his death, and after his death it was occupied and enjoyed by the plaintiffs. That thus Van B. Rice received more than his share of his father's estate in consideration of his agreement to relinquish further rights, and therefore plaintiffs are estopped to claim any further right, title or interest in the land in dispute. The answer then prays for a decree accordingly.

For further answer to the first count of the petition, it is alleged that Van B. Rice held and occupied the land which was granted to him in his lifetime by his father, as an advancement, and that the plaintiffs should be estopped from asserting any further claim to the estate.

The answer to count two is a general denial.

To the answer the plaintiffs filed for reply a general denial; they also denied that David Rice made any advancement of any kind to their father, but prayed that, if the court should find that such advancement was made to Van B. Rice, the value of the property conveyed to him might be taken into account and the value thereof charged to the interest of the plaintiffs in partitioning the land described in the suit. The reply denies each and every allegation of the answer except that admitted.

After the trial, on February 12, 1923, the Circuit Court of Dunklin County rendered a decree and found as a fact that the contract set up in the defendants' answer was proven by the evidence, but held that the plaintiffs had a right to recover because they were not bound by the contract of their father and inherited directly from their grandfather under the Statute of Descents.

The plaintiffs thereupon filed a motion asking the court to modify the judgment as to the finding that the contract alleged had been established. That motion was overruled. The defendants then appealed in due form from the judgment of the court in favor of the plaintiffs, and the plaintiffs appealed from the order of the court overruling their motion to modify. Hence the two appeals.

There is no dispute as to the facts. The controversy turns entirely upon the admissibility of evidence offered by defendants in support of their answer upon the arrangement whereby David Rice conveyed the 72.5 acres to his son and his son conveyed his interest in his father's estate, and the construction of the law applicable to those facts.

I. The question arises whether the conveyance by David Rice to Van B. Rice in 1883 was an advancement, with the effect which would follow a transaction of that character. It is a general rule that a substantial voluntary gift by a parent to a child, especially of land, is prima-facie an advancement. [Ray v. Loper, 65 Mo. 470; Lynch v. Culver, 260 Mo. l. c. 497; ...