Edwards v. Latimer

• Decision Date: 02 July 1904
• Citation: Edwards v. Latimer, 183 Mo. 610, 82 S.W. 109 (Mo. 1904)
• Parties: FANNIE EDWARDS et al. v. JOHN E. LATIMER, Appellant
• Court: Missouri Supreme Court

82 S.W. 109

183 Mo. 610

FANNIE EDWARDS et al. v. JOHN E. LATIMER, Appellant

Supreme Court of Missouri, Second Division

July 2, 1904

Appeal from Pike Circuit Court. -- Hon. D. H. Eby, Judge.

Affirmed.

J. H Blair & Son for appellant.

(1) The deed recites that the consideration for the conveyance was "love and affection and one dollar." Where a deed recites a good consideration, it cannot be shown that it was a valuable consideration. Clarkson v. Honway, 2 P Wms. 203; Potter v. Gracie, 58 Ala. 303; Latimer v. Latimer, 53 S.C. 483; Winningham v. Pennock, 36 Mo.App. 688; Jackson v. Railroad, 54 Mo.App. 636. (2) The consideration stated in the deed being love and affection, to allow parol evidence to show that the consideration was an exchange of interest in lands, would show a consideration inconsistent with and contradictory of the consideration stated, which is not permissible. McLeod v. Skiles, 81 Mo. 595; Landman v Ingram, 49 Mo. 212; Nedvidek v. Meyer, 46 Mo. 600; Hickman v. Hickman, 55 Mo.App. 303; Harrison v. McGuire, 18 Mo.App. 517; Tied., Real Prop. (Enlarged Ed.), sec. 801. (3) The consideration stated in the deed is not a mere recital. The parties to this deed, in order to impress upon its face that the conveyance was intended as a gift, state that the grantee is a "son of the grantor herein." There could have been no other motive for identifying the grantee as the son of the grantor except to show that it was a gift and that the grantee came within the degree of consanguinity within which a good consideration would operate. (4) The one dollar stated in the deed is not a valuable consideration. Houston v. Blackmier, 66 Ala. 559. (5) Plaintiffs introduced the deed in evidence, consideration clause and all. Are they not bound by their own evidence, or can they introduce documentary evidence and then be permitted to impeach it and show by parol evidence that some of the statements therein are not true?

W. O. Gray, Geo. W. Emerson and J. D. Hostetter for respondents.

(1) A parol partition of lands can be confirmed by a decree in equity at the instance of a devisee of one of the parties, as in the case at bar. Gulich v. Huntley, 144 Mo. 241; Cochran v. Thomas, 131 Mo. 271; Sutton v. Porter, 119 Mo. 100. (2) The general rule is that the consideration clause in a deed is always open to explanation and that it is competent to show what the actual consideration was by parol evidence and to prove additional items to those set out in the deed, and that it is also competent to show by parol evidence that the consideration is different and even contradictory to that recited in the instrument. O'Day v. Conn, 131 Mo. 321; Squier v. Evans, 127 Mo. 514; Bank v. Aull, 80 Mo. 201; Baile v. Ins. Co., 73 Mo. 371; Kincaid v. Irvine, 140 Mo. 615; Jackson v. Railroad, 54 Mo.App. 636. (3) This being a case in equity, it is true that the appellate court will review the evidence, still in doing so, it will defer largely to the conclusions that the trial court reached. Parker v. Roberts, 116 Mo. 657; Johnson v. Duer, 115 Mo. 366; Lins v. Lenhardt, 127 Mo. 271; Kincaid v. Irvine, 140 Mo. 615; Robertson v. Shepherd & Stone, 165 Mo. 375; Talliaferro v. Evans, 160 Mo. 380; Matthias v. O'Neill, 94 Mo. 530; Bushong v. Taylor, 82 Mo. 666; Berry v. Hartzell, 91 Mo. 138; Springer v. Kleinsorge, 83 Mo. 159; Erskine v. Lowenstein, 82 Mo. 301; Chouteau v. Allen, 70 Mo. 336; Benne v. Schnecko, 100 Mo. 250.

OPINION

GANTT, P. J.

This is a suit for the partition of the real estate devised by Mrs. Mary A. Latimer, of Pike county, to her two children, John E. Latimer and Mrs. Fannie Edwards.

John H. Latimer died about the year 1876 seized in fee of 407.85 acres of land in Pike county, which comprised two tracts separated by a public road, one tract of 160 acres, and the other 247.85 acres.

John H. Latimer left a widow and five children. His widow elected to take a child's part. In the settlement of the estate among themselves Z. Taylor Latimer, the oldest child, took his entire portion in money and personal property so that the real estate was owned by the widow and the other four children, each an undivided one-fifth of the land. Later on Mrs. Fannie Edwards conveyed her undivided one-fifth to her brother John E. Latimer. Mrs. Kate Munroe conveyed her one-fifth to her brother Albert, and he afterwards conveyed his two-fifths to his mother, Mrs. Mary A. Latimer, so that Mrs. Mary A. Latimer owned three-fifths, and John E. Latimer two-fifths.

On May 29, 1886, Mrs. Mary A. Latimer made a will by which she devised to Fannie, then single, and to John E., her son, all her interest in the 407.85 acres. In 1894 John E. Latimer, being desirous of selling the 160-acre tract, which has a house on it, his mother made a deed to him of her three-fifths of the 160 acres, for the recited consideration of love and affection and one dollar. It is alleged by the plaintiffs that prior to said conveyance and to better enable John E. Latimer to sell his share of said 407.85 acres, a mutual partition of said lands was made between Mrs. Mary A. Latimer and her son John E. Latimer, and each contracted to convey to the other as follows, to-wit, said Mary A. Latimer agreed to convey her three-fifths in the 160 acres to her son and he agreed to convey to his mother his two-fifths of the 247.85 acres, and in March, 1894, Mrs. Latimer did convey her three-fifths in the 160-acre tract to her son, but that he neglected to convey his legal title to his two-fifths in the 247.85 acres to her, but that in pursuance of said agreement and contract, defendant, the said John E. Latimer, delivered possession of his said interest in said 247.85 acres to his mother, and she took and remained in sole and exclusive control and possession of said 247.85 acres in fee simple ever thereafter, and defendant represented to her in her lifetime that it was not necessary to make a deed to her of his two-fifths in said 247.85 acres, but that she had the full legal and equitable title to said tract without any other conveyance.

Plaintiff alleged that on the day of December, 1900, Mrs. Mary A. Latimer departed this life, seized and possessed in fee simple of said 247.85 acres, and by her last will duly executed, proved and admitted to probate, she devised the same to her said son John E. Latimer and Fannie Edwards each an undivided one-half thereof.

Plaintiff prayed for a decree divesting defendant of the record title to one undivided one-fifth interest in said 247.85 acres and vesting the title thereto in plaintiff, and for a judgment that John E. Latimer and Fannie Edwards each is entitled to one undivided one-half of said 247.85 acres, and for partition between them as aforesaid and that as the same could not be partitioned in kind, that the said land be sold, and, after paying the costs, that the proceeds be equally divided between the two, and for all proper relief.

Defendant denied that he and his mother made a voluntary partition as alleged; admits he and his mother owned the lands described in the petition; denies that for any valuable consideration he agreed to convey his undivided two-fifths in said 247.85 acres to his mother.

Further answering he says his sister and himself are entitled by the will of his mother to whatever interest his mother owned in said tract of 247.85 acres; that on March 23, 1894, his mother for love and affection conveyed her interest in the 160-acre tract, and the same was a gift to him by her, and by him accepted as such; that at the death of his mother defendant owned in fee simple an undivided five-twelfths in said 247.85 acres, and his mother seven-twelfths therein; that since the death of his mother he is the owner of seventeen twenty-fourths of said tract of 247.85 acres, and the plaintiff Fannie Edwards is the owner in fee simple of seven twenty-fourths thereof. He prays the court to adjudge their respective interests accordingly and decree partition in kind.

The case was tried at the June term, 1901, and resulted in a decree that plaintiff Mrs. Edwards, and defendant John E. Latimer, were each entitled to an undivided one-half of said 247.85 acres and ordering the land to be sold and the proceeds equally divided after the payment of costs. Defendant appeals.

The following facts were found by the circuit court and the evidence fully justifies its findings.

"In March, 1894, the widow, Mary A., resided in the town of Bowling Green, Missouri, a few miles from the land in controversy. She had lived there since about the year 1877 or '78. During the whole time of her residence in Bowling Green, the defendant, John Latimer, made his home with her. Fannie Edwards and her husband also lived with Mary A. until about four years before the latter's death, which occurred December 19, 1900. Fannie was the youngest child. Up to a few years before her death, Mrs. Mary Latimer was able to and did attend to her business affairs, loaning and collecting money, renting the farm and collecting rents. The actual operations on the farm, both prior to and after the deed from Mary A. to John, in the way of making arrangements for repairing the fences, taking in and caring for stock and collecting rents was to a great extent superintended and conducted by John. During the last five or six years of her life, Mrs. Mary Latimer was afflicted with dropsy and heart trouble, her physical condition being such that she could not go out to the farm. The 160-acre tract was improved, having on it a dwelling house and barn. The 247.85-acre tract was with the exception of fencing, unimproved. At one time a small cabin, occupied by a negro, had stood on it, but this burned down, just when does not appear. On the twenty-third day of March, 1894, the widow, Mary A. Latimer, executed to...