Givens v. Marbut

• Decision Date: 23 June 1914
• Docket Number: No. 16746.,16746.
• Citation: 259 Mo. 223,168 S.W. 614
• Parties: GIVENS v. MARBUT.
• Court: Missouri Supreme Court

168 S.W. 614

259 Mo. 223

GIVENS v. MARBUT.

No. 16746.

Supreme Court of Missouri, Division No. 2.

June 23, 1914.

1. DEEDS (§ 208)—DELIVERY—WEIGHT AND SUFFICIENCY OF EVIDENCE.

In a widow's action for the assignment of dower, evidence held to show that a deed to the husband's first wife in her lifetime was delivered with intent to vest the title in her, though the husband subsequently continued in possession of the land and exercised the usual dominion over it, indicative of ownership.

2. DOWER (§ 20)—CONVEYANCES BEFORE MARRIAGE —RECORD—NECESSITY.

The failure of a wife to record a deed from her husband did not affect her ownership as against the claim of a subsequent wife to dower.

Appeal from Circuit Court, Barry County; Carr McNatt, Judge.

Action by Martha J. Givens against Edward Marbut. From a judgment for defendant, plaintiff appeals. Affirmed.

Mayhew, Sater & Gardner, of Monett, for appellant. J. S. Davis, of Cassville, for respondent.

WALKER, P. J.

Plaintiff brought suit in the circuit court of Barry county, for the assignment of dower in the following described real estate in said county, to wit: The north half of the southwest quarter of section 31, township 25, range 26. Upon a trial the court found the issues in favor of defendant, from which finding and decree plaintiff appeals.

Plaintiff married Nathan T. Marbut in 1896. They lived together a short time, and in 1901 she brought suit against him for divorce, and same was granted. At the time of Nathan T. Marbut's marriage to plaintiff he was an elderly widower living in Barry county. In February, 1892, during the lifetime of his first wife, Malinda J. Marbut, he conveyed to her by warranty deed, for a nominal consideration the land above described. About three years after this transfer Malinda J. Marbut died. During her lifetime and subsequently thereto her husband continued in possession of the land, and exercised the usual dominion over it indicative of ownership. Upon his death in 1910, he devised the land to the defendant.

Upon a review of the facts as preserved in the transcript, much of which is irrelevant, we find that the material question in controversy is as to the delivery of the deed from Nathan T. Marbut to his wife, Malinda J. Marbut. The importance of the determination of this question renders it proper to set out in their own words the testimony of the witnesses relative thereto.

W. D. Griffith, a witness for defendant, testified as follows:

"My name is W. D. Griffith. My home is down close to Carney. My business is farming. I was born and raised in this county. Marion P. Griffith was my father. He died eight or nine years ago. He was a notary public at McDowell on the 29th day of October, 1892. I was present when Nathan T. Marbut executed a deed before by father to Malinda J. Marbut at McDowell. Myself, my wife, Mr. Marbut and his wife, my father and brother were present. My brother is dead. He witnessed the deed. He died seven years ago. I am familiar with my brother's handwriting."

Witness was handed a deed dated February 29, 1892, being the deed from Nathan T. Marbut to Malinda J. Marbut, relative to which witness further testified:

"That deed is in my brother's handwriting. I saw him fill out the deed for my father. I do not remember how he prepared it, whether he drew it from another deed or not. I remember he made a mistake some way in the deed, I do not remember who made the change and erasures, whether it was my brother or my father. My father first discovered the mistake. I think this was done before Nathan T. Marbut signed the deed. My father acknowledged the deed and turned it over to Mr. Marbut, and Mr. Marbut turned it over to his wife. They were sitting in the south room of the dwelling house. My father was sitting in the middle of the room between the bed and fireplace. I think I saw Nathan T. Marbut sign the deed. I do not know whether I am familiar with his signature or not.

"Counsel for defendant: Q. Who had the deed just before your father had it? A. My brother, J. J. Griffith. He turned it over to my father. My father turned it over to Mr. Marbut, and he turned it over to his wife. When my father got through with the deeds he handed them to Mr. Marbut, and Mrs. Marbut was sitting down, and he gave them to his wife. She put them in a small satchel. That is the deed I held in my hand that she put in the satchel. The name, J. J. Griffith, there in handwriting, is my brother's."

V. H. Marbut, a witness for defendant, testified as follows:

"My name is V. H. Marbut. I live in the north part of Barry county. Nathan T. Marbut is an uncle of mine. I am a cousin of Edward Marbut, the defendant. I remember my uncle, Nathan T. Marbut, going to Mr. Griffith at McDowell to make some instruments of writing. I was there. That was during the lifetime of Malinda J. Marbut. I was present when the deed was made. I saw the deed filled out. I was one of the witnesses to the deed. It was being executed before Mr. Griffith. He is now dead. This signature to this instrument is mine. I was acquainted with Nathan T. Marbut's handwriting. I think this is his handwriting Mr. J. J. Griffith did the writing of the deed. He was a son of the notary public. There was a mistake made in some way in the body of the deed. It was copied from another deed he had. Instead of using the name, Nathan T. Marbut, he used the name in the original deed. The matter was filled in before my uncle signed it. J. J. Griffith erased the names...