Forster v. Clark

• Decision Date: 01 June 1943
• Docket Number: 38329
• Parties: Martha Forster et al. v. Lee Clark et al., Appellants
• Court: Missouri Supreme Court

171 S.W.2d 647

351 Mo. 59

Martha Forster et al. v. Lee Clark et al., Appellants

No. 38329

Supreme Court of Missouri

June 1, 1943

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

Affirmed.

E P. Dorris for Lee Clark, appellant.

There was a valid delivery of the deed. Meader v. Ward, 303 Mo. 176; Hamilton v. Armstrong, 120 Mo. 597. Grantor in presence of a son held a valid delivery. Sneathen v. Sneathen, 104 Mo. 201; Slagle v Callaway, 333 Mo. 1055; Mendenhall v. Pearce, 20 S.W.2d l. c. 674; Meredith v. Meredith, 287 Mo. 250; Givens v. Marbut, 259 Mo. 223; Schooler v. Schooler, 258 Mo. l. c. 92; Blackiston v. Russell, 44 S.W.2d 22; Southern v. Southern, 52 S.W.2d 868; Whiteley v. Babcock, 202 S.W. 1091. The fact is all this testimony in reference to the timber deed and Triple A contracts is subject to objection, under the agreement and reservation in taking the depositions, and we urge an objection to this testimony because it is not the best evidence on the subjects, as the best evidence would be the contracts and timber deed themselves. The most of the testimony of Lee Clark is objectionable and we do not consider it admissible. The court considered the evidence by depositions in chambers, and did not indicate his rulings on the objections. Burkey v. Burkey, 175 S.W. 623; Zumwalt v. Forbis, 163 S.W.2d 574.

E. V. Kell and A. W. Landis for respondents.

(1) There is not a complete delivery unless the grantor parts with all dominion and control over the deed with the intention that it take effect and pass title as a present transfer. Sneathen v. Sneathen, 104 Mo. 201; Blackiston v. Russell, 44 S.W.2d 22; Van Huff v. Wagner, 287 S.W. 1038; Coles v. Belford, 232 S.W. 728. (2) Delivery without intent by grantor to transfer title is ineffectual to pass title as a present transfer. Southern v. Southern, 52 S.W.2d l. c. 870; Ray v. Walker, 240 S.W. l. c. 196; Coles v. Belford, 232 S.W. l. c. 731. (3) Appellant, Lee Clark was incompetent to testify to any conversations with his father, W. H. Clark, because W. H. Clark was deceased at time of the suit. Sec. 1887, R. S. 1939; Wren v. Sturgeon, 184 S.W. 1036; Eaton v. Curtis, 4 S.W.2d l. c. 823.

OPINION

Clark, J.

In 1924 W. H. Clark and Sarah J. Clark, his wife, executed a deed purporting to convey 160 acres of land to their son, Lee Clark. W. H. Clark died on September 7, 1939, and about one week later his widow gave the deed to Lee Clark who had it recorded. Some of the children and heirs of W. H. Clark brought suit against Lee Clark, the other heirs, and the widow. The petition was in two counts: (1) alleging that the deed was void for want of delivery; (2) for partition and sale of the land and distribution of the proceeds. The judgment of the circuit court was for the plaintiffs and defendant, Lee Clark, has appealed.

Defendants offered a demurrer to the evidence at the close of plaintiffs' case and at the close of the whole case. There is no controversy as to heirship, nor that the land is insusceptible of division in kind and there is little, if any, conflict in the testimony. Our sole problem is to determine whether, under the evidence, the deed is invalid for want of effectual delivery.

The only evidence as to the circumstances surrounding the execution of the deed was given by Sarah J. Clark. She was about 80 years of age at the time of the trial and the deed was executed more than 17 years before that. She said that she and her husband went to the office of a notary where the deed was prepared, signed and acknowledged. Her husband then handed the deed to her and told her to take care of it, put it away and not say anything about it and, after his death, to give it to Lee. On arrival at their home she, in the presence of her husband, put the deed in an unlocked trunk in the room where they slept, where it remained for fifteen years and until after the husband's death. In her testimony without objection, she was permitted to answer questions as to her "understanding," typical of which is the following:

"Q. Was it your understanding, Mrs. Clark, that Mr. Clark could recall that deed any time he wanted to? A. Sure he could."

Later a somewhat similar question was objected to without any reason being assigned for the objection and without any definite ruling by the court.

Lee Clark had occupied the land for several years before the deed was executed and had paid part of the income to his father. He continued to occupy the land in the same way thereafter. Taxes were assessed to, and paid by, W. H. Clark. Government payments under the soil conservation program were made to W. H. Clark. Lee Clark had no knowledge that the deed had been executed until it was delivered to him by his mother after his father's death.

The deed is an ordinary warranty deed without any reservation of a life estate and recites a consideration of "one dollar and other valuable consideration."

Over the objection of plaintiffs' counsel that the other party to the transaction was dead, Lee Clark was permitted to testify. He said that he paid back to his parents "in work" an indefinite part of the money which they paid for taxes; and that he received part of the money paid to his father by the government. He also said his father, in the early part of 1939, sold the growing timber and made a "timber deed," but that he got part of the proceeds.

This court has many times been called upon to consider problems similar to the one here involved and the applicable principles of law are well settled. Those principles are clearly set forth with copious citation of authorities in Blackiston v. Russell, 328 Mo. 1164, 44 S.W.2d 22, l. c. 26. Delivery is essential to the validity of a deed; the grantor must part with dominion and control over the instrument with intent that it take effect in the present; the delivery need not be made to the grantee, but may be made to a third person for him.

However, each case has its own peculiar facts and it is not always easy to apply the applicable principles to the particular facts. That may explain why both parties here have cited many of the same cases in support of their respective contentions. It is of prime importance to determine the intent of the grantor, from his words, or his conduct, or from both. But first it may be well to discuss the cases upon which appellant relies.

In Meador v. Ward, 303 Mo. 176, 260 S.W. 106, a husband and wife made a deed to their daughters and he gave it to the wife "to take care of for the girls." The wife put the deed in the husband's box with his papers, but shortly before his death he told her to have the deed recorded, which she did. Of course, those facts furnish a clearer inference that the grantor intended to part with dominion of the deed and to make it convey a present interest than do the facts in the instant case. In Hamilton v Armstrong, 120 Mo. 597, 25 S.W. 545, there was complete delivery of the deed to one of the grantees. In Sneathen v. Sneathen, 104 Mo. 201, 16 S.W. 497, the grantor gave the deeds to his wife with instructions to give them to the grantees the first time she saw them. This was a complete delivery although the wife did not actually give the deeds to the grantees until after her husband's death. In Slagle v. Callaway, 333 Mo. 1055, 64 S.W.2d 923, there was evidence that the grantor gave the deed to his son, the grantee, with the request that it be not recorded until his death. One witness said the grantor told him he wanted to live in peace with his family, that is, he wanted to withhold the deed from record for fear the other children might object. Until his father's death the grantee kept the deed in a bank box to which they both had access, but in which their papers were kept separate. We held that the delivery was complete and was not nullified by instructions to withhold the deed from record, nor by the fact that the grantor could have regained possession of the deed. It is apparent that the evidence of completed delivery is stronger in that case than in the instant case. In Mendenhall v. Pearce, 323 Mo. 964, 20 S.W.2d 670, l. c. 675, the grantor left the deed with a bank with written instructions to keep it until her death and then to deliver it to the grantees. We held, in effect, that the instructions clearly meant for the bank to hold the deed as against...