Gillespie v. Gillespie

• Decision Date: 31 December 1926
• Docket Number: 25803
• Citation: 289 S.W. 579
• Parties: GILLESPIE v. GILLESPIE et al
• Court: Missouri Supreme Court

289 S.W. 579

GILLESPIE v. GILLESPIE et al

No. 25803

Supreme Court of Missouri, First Division

December 31, 1926

Charles E. Gibbany and F. P. Stapleton, both of Albany, for appellants.

J. W McKnight, of Albany, for respondent.

OPINION

LINDSAY, C.

The controversy herein is over the ownership of certain real estate, described as lot 3 of block 15, in the city of Albany, the same being dwelling house property. The petition is in two counts. In the first count the plaintiff prays for ascertainment and determination of title, and as a ground of ownership alleges that the property in controversy was conveyed to her in August, 1915, by a warranty deed duly executed by Jeanette Gill and John Gill, her husband, who were then the owners of the property, and that said deed was delivered to plaintiff but was not recorded, and that afterward, about September 16, 1919, James H. Gillespie, the husband of plaintiff, without her knowledge and consent caused said deed to be destroyed, and procured said Jeanette Gill and John Gill, her husband, to execute a deed to said property purporting to convey the same to said James H Gillespie. Plaintiff asked for a restoration of the deed which had been destroyed, and that she be adjudged the owner of the property.

James H. Gillespie died intestate in March, 1923. The plaintiff is his widow, and was his second wife, and there were no children born of their marriage. The defendants other than Callie Phelps and Velma Phelps are the children of James H. Gillespie, deceased. Callie Phelps and Velma Phelps were occupying the property as tenants at the time of the institution of the suit. The second count is in ejectment. The defendants by their answer denied the making of the deed of conveyance of said property by Jeanette Gill and John Gill, her husband, to the plaintiff, and averred that if such deed was made, any right, title, or interest that plaintiff may have acquired thereunder to said property was held by her in trust for the use and benefit of said James H. Gillespie, his heirs and assigns. They denied that said deed was ever delivered to plaintiff; averred that the entire purchase price for the transfer of the property from Jeanette Gill and John Gill was paid to them by James H. Gillespie; that James H. Gillespie paid all taxes assessed against said property from the time of the purchase until his death, and after the purchase, expended large sums in repairs and improvements upon the property, and exercised entire control of the same during the remainder of his life; that James H. Gillespie purchased the property as an investment and speculation and for no other purpose; that the property was conveyed by said Jeanette Gill and John Gill by warranty deed dated September 16, 1919, to said James H. Gillespie, his heirs and assigns, and that said deed was duly recorded, and that James H. Gillespie and his heirs have been in the peaceful and undisturbed possession of the property from and after the last-mentioned date, and from and after August, 1915. At the time of his death in 1923, James H. Gillespie was about 87 years of age, and the plaintiff was about 67 years of age at the time of the trial.

As the case is presented in the briefs, and under the state of the evidence in the record, certain facts may be regarded as not in dispute. James H. Gillespie purchased the property in question from the Gills in August, 1915, and paid the purchase price of $ 600, which was about the fair value of the property at that time. The Gills then executed a warranty deed in ordinary form, describing the property and naming plaintiff, Ellen Gillespie, as the grantee therein. There was evidence for plaintiff that in August, 1915, this deed was handed to plaintiff by her husband. The circumstances attending that transaction will be mentioned hereafter. Shortly after the purchase, James H. Gillespie made, and out of his own means paid for, extensive repairs and permanent improvements to the property, and after their completion the fair value of the property was $ 1,500. The property was there-+ after let to tenants, and the rents were paid to James H. Gillespie. The property was assessed in the name of James H. Gillespie for the years 1916 and 1917, and the taxes for those years were paid by him. The assessments for the years 1918, 1919, and 1920, were in the name of Ellen Gillespie, but the taxes for those years were paid by James H. Gillespie. For the years 1921 and 1922 the assessment was under the name of James H. Gillespie. It is also beyond dispute that about September 16, 1919, James H. Gillespie destroyed the deed made by Jeanette Gill and John Gill to Ellen Gillespie, and contemporaneously he procured them to execute, and they did execute to him for the expressed consideration of $ 600, their warranty deed to the property in controversy, and no additional consideration was paid by him at that time. It was shown that at the time of the trial, Jeanette Gill was confined in an asylum for the insane, and her husband, John Gill, was deceased. The court found for the plaintiff upon both counts, and upon all the issues raised by the pleadings. The record shows the waiver of a jury as to the second count.

That the Gills duly executed and acknowledged a warranty deed to the property, in August, 1915, in which plaintiff was the grantee, is not made a matter of controversy in the brief for defendants, nor is it argued that it was not handed to plaintiff, nor argued that such deed being in existence about September 16, 1919, was not destroyed, upon the day and occasion when the Gills executed a deed to James H. Gillespie for the same property and upon the same expressed consideration.

The only witness testifying to the circumstances under which the deed in question was handed to plaintiff by her husband was Mrs. Bertha Harrison, a granddaughter of plaintiff. She testified that on a day in August, 1915, she was with her grandmother at the home of James H. Gillespie and plaintiff; that James H. Gillespie at the time came home, and stated that he had bought the property which is here in controversy, and told the witness he was going to give it to 'Ellen, his wife. It was going to be hers at his death.' He gave the deed in question to plaintiff, and said to her: 'Here, Ellen, this is yours. I want it to be yours at my death.' The plaintiff thanked him, and the three of them talked about it, and plaintiff looked at the deed and read it, and handed it to the witness, who also read it, after which plaintiff placed the deed in a dresser drawer where they kept all their papers; that in order that she could do so, plaintiff's husband handed to her the key to the drawer, carried by him in his pocket, and after plaintiff had put the deed in the drawer, she returned the key to her husband. The witness testified upon cross-+examination:

'Q. What were the words that he said to you? A. He told me that he had bought the property and wanted that to be Ellen's, his wife.

'Q. Wanted it to be hers? A. Yes, sir.

'Q. I believe you said a while ago that he intended to give it to Ellen? A. No, I didn't say that.

'Q. I understood you to say that he said that he intended it to be Ellen's after his death? A. No, sir.

'Q. What was it he said? A. He said he gave that to Ellen; it was to be hers at his death.

'Q. It was to be hers at his death? A. Yes, sir; and all the time.'

Further on, in cross-examination, she testified:

'Q. What did he do? A. He didn't do anything only sit down in a chair.

'Q. You just all went in there and sat down in there, and then what happened in there? A. Nothing, only he got the deed from his pocket and handed it to her and said, 'Here, Ellen, this is yours,' and she looked at the deed and read it over.

'Q. What was it he said? A. He said, 'Here Ellen, this is yours.'

'Q. Well, now, while ago you said that when he went in the house he said, 'Here, Ellen, is the deed to that property; it is to be yours at my death' Now what was it he did say? A. That is what he said.

'Q. Oh, he said, 'Here, Ellen, is the deed and it is to be yours at my death?' A. Yes, sir.'

William H. McCord, another witness for plaintiff, testified that in 1915 he did some work for Mr. Gillespie in the making of repairs and improvements upon the property in question, and had some conversation with him in regard to whose property it was, and in that conversation James H. Gillespie said to witness: 'Ellie has the deed to that place. The deed was made to her,' and witness understood him to refer to plaintiff. On cross-examination the same witness repeated the statements of James H. Gillespie, as speaking of the ownership of the property, and saying: 'Ellie has the deed to it. The deed was made to her.'

Mrs. Rena Smith testified that upon an occasion about two years before the death of Mr. Gillespie, she was at his home, which was near the property in controversy, and that while sitting on the porch of his home, he 'just looked up at the property' (here in issue) and said, referring to his wife: 'I gave that to her. I wanted her to have that.' On cross-examination this witness was asked:

'Did he say he gave it to Ellen or was going to give it to her? A. No, he said he gave it to her.

'Q. What else did he say? A. Well, nothing, only he said he wanted her to have it.

'Q. He gave it to her and he wanted her to have it? A. That is all that he said.'

The points urged by counsel for defendants are: First, that the title never vested in the plaintiff because there was no delivery of the deed to her, that is there was at the time of its manual delivery no intent to pass the title eo instanti and, second, that if there was a delivery of the deed, there was a resulting trust in favor of James H. Gillespie, whereby the second deed...