Galloway v. Galloway, 38319

• Court: United States State Supreme Court of Missouri
• Writing for the Court: VAN OSDOL, Commissioner. Per Curiam.
• Citation: 169 S.W.2d 883
• Parties: GALLOWAY et al. v. GALLOWAY
• Docket Number: 38319
• Decision Date: 06 April 1943

169 S.W.2d 883

GALLOWAY et al.
v.
GALLOWAY

No. 38319

Supreme Court of Missouri, First Division

April 6, 1943

G. Purd Hays and Chas. F. Boyd. both of Ozark, for appellant.

Andrew Howard, of Billings, and Gordon J. Massey, of Ozark, for respondents.

OPINION [169 S.W.2d 885]

VAN OSDOL, Commissioner.

This case involves the title to real estate, eight lots with residence building, in Sparta, Christian County, Missouri. The petition as originally filed declared at law in partition. The parties are the heirs at law of J. W. Galloway, who died July 31, 1940. On March 31, 1937, J. W. Galloway had executed a quitclaim deed to defendant, appellant, describing the real property sought to be partitioned. The cause was transferred on change of venue to the circuit court of Lawrence County, where a count in equity to set aside the deed for alleged nondelivery was added by amendment. The answer is a general denial and a plea of sole ownership of the land under the deed. The merits of the cause involve one question the delivery of the deed. The trial court found for plaintiffs, set aside the deed, and ordered partition.

The grantor, J. W. Galloway, was 91 years of age at the time of his death; in his later years and until his death he had lived on the property in controversy. He transacted his banking business at the Citizens State Bank of Sparta and had, for about ten years, rented a safety deposit box at that bank. His entire property consisted of the land in the pleadings and deed described and a note in the sum of $ 200, the defendant, Wallace W. Galloway, maker; the deed and the note were in the safety deposit box at the time of the grantor's death. J. W. Galloway received old age assistance which, it seems, was his only income. For some twenty months preceding his death he had been attended by one Frank Moses and wife, who lived with him in his home; he had suffered a 'stroke' about thirty days prior to his death.

It was the testimony of Wayne H. Galloway, a plaintiff, that he stayed with his father, J. W. Galloway, from July 5, 1940, until his death; his father told him that he had made a deed to defendant with the understanding that upon the father's death defendant was to sell the property, pay the funeral expenses and doctors' bills, and divide the remaining money equally among the children; his father said that the deed was not recorded and was not to be 'turned over' to defendant until the father's death. Witness further testified that he, on the day following his father's funeral, accompanied defendant and defendant's son, Forrest, to the bank; defendant told the banker he wanted the box opened. The deed, the note, and 'some other articles' were in the box. Witness stated that defendant took the deed and handed it to a Mrs. Jenkins, who put it in an envelope and gave it back to defendant until defendant got it out of the box, according to witness, it was not in an envelope. The witness testified that his father had kept the key to the safety deposit box in a little envelope in a billfold, that the key had never been turned over to the defendant; and that his father told witness defendant had tried to get him to record the deed. Witness further testified that defendant had tried to 'buy out' the witness and his sister.

Harvey Jenkins, cashier of the Citizens State Bank of Sparta, testified that J. W. Galloway had never instructed him to allow any person to use the box but that the defendant did come to the bank with his father a number of times. J. W. Galloway, when sick, according to witness, gave the key to Frank Moses; 'Old man Galloway, I know put the deed in the box. * * *' Witness does not remember who was with him at the time. The witness stated there are always two keys with every box and he does not know who had the other key to the Galloway box; no one else ever came with the key when witness was at the bank, but the witness is not at the bank at all times.

It was the testimony of Frank Moses that J. W. Galloway said defendant tried to get [169 S.W.2d 886] him to have the deed recorded but that he, J. W. Galloway, would not record it as long as he lived and would destroy the deed if he got able to go to the bank. 'He got the key to the box at the bank. He wanted the key so they would not get the deed. They, meant his son Wally.'

Nettie Weddle, plaintiff, testified that in early September, 1937, her father told her he had made the deed with the understanding that at his death defendant would sell the property and divide the money equally among the children. Her father said he kept the deed in the bank at Sparta and would never turn it over in his lifetime to defendant. Witness stated that defendant wanted to buy her out on July 11, 1940.

Mrs. Frank Moses testified that J. W. Galloway said that he had made the deed to defendant, who 'was to have the place to make it satisfactory with the children, and they would all of them have an equal share in it'; he said that the deed had never been recorded; and that, after defendant had tried to get him to have the deed recorded, he said he would go to the bank and tear up the deed; but, according to witness, he never got able to go to the bank.

It was the testimony of Effie Galloway, wife of defendant, that she saw J. W. Galloway give her husband the deed about the first of April, 1937; J. W. Galloway said, 'Son, here is that deed'; this was at the home of witness and defendant north of Rogersville, Missouri. They kept the deed, according to witness, until the last of November or the first of December, 1937; it was then taken from a small steel mail box, where it had been kept in their home, and sealed in an envelope by the defendant; the defendant and his son took the deed to the bank; Mr. Galloway was with them. The deed was in the envelope, according to witness, when taken to the bank, and witness identified an envelope as the one which had contained the deed; the consideration for the deed was the care of J. W. Galloway for his lifetime. The witness further testified the defendant paid taxes for 1937 and subsequent years; paid out money for his father's care 'time and again'; paid Mrs. Moses for caring for him $ 20 per month the first year, later 75 cents a day, $ 30 per month after his father became bedfast; and, after the father's death, paid all of the debts. On cross-examination, the witness stated that J. W. Galloway told her and her husband, upon their suggestion to him that the deed be recorded, 'I had rather have a home as long as I live knowing it is mine, and when I am done with it (,) it is Wallace's.'

It was the testimony of Forrest Galloway, son of defendant, that he saw his grandfather deliver a deed to his father on April 1, 1937; that he had heard prior conversations about the deed, the consideration for the deed was the care of the grantor during his lifetime; that the defendant paid doctors' bills, funeral expenses in the sum of $ 185, all taxes on the property for 1937 and subsequent years, and paid Mrs. Moses $ 20 per month for a time, later $ 25 per month; that after his grandfather had given the deed to his father it was kept in his father's home in a small mail box until about the first of December, 1937, when it was taken to the safety deposit box at the bank; that the deed was sealed into an envelope by the defendant just before it was taken out of his home and was still so sealed when taken from the box at...