Harrison v. Edmonston

• Decision Date: 23 February 1923
• Docket Number: No. 22836.,22836.
• Citation: 248 S.W. 586
• Parties: HARRISON v. EDMONSTON et al.
• Court: Missouri Supreme Court

248 S.W. 586

HARRISON v. EDMONSTON et al.

No. 22836.

Supreme Court of Missouri, Division No. 2.

February 23, 1923.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Suit by B. F. Harrison against W. A. Edmonston and another. Decree for plaintiff, and defendants appeal. Affirmed.

R. J. Smith and Hugh B. Pankey, both of Kennett, for appellants.

McKay & Jones, of Kennett, for respondent.

WHITE, J.

The petition in this case is in two counts. The first count seeks to cancel a certain deed executed in the state of Texas, January 20, 1920, whereby William Bryan Edmonston conveyed certain land in Dunklin county, Mo., to the plaintiff and the defendants, as tenants in common. The second count is to determine title, alleging that the plaintiff is the owner in fee simple of the land described in the first count, and that the defendants claim title under the deed described in the first count. In each count it is alleged that the deed mentioned was executed before a notary public in the state of Texas, but never delivered during the lifetime of the grantor, and tie only issue presented is whether the deed was delivered.

The plaintiff was the half-brother and only heir at law of William Bryan Edmonston, the grantor, and the defendants were his cousins. William Bryan Edmonston died at Hornersville in Dunklin county in February, 1920.

The plaintiff to sustain the issues on his part introduced the following evidence:

It was admitted that William Bryan Edmonston died intestate.

Solon Davis, who lived in Hornersville, testified that he visited William Bryan Edmonston in February, 1920, just after the latter had returned from a health resort. W. A. Edmonston, one of the defendants, was present. The witness thus relates the significant incident of his visit:

"I got up to leave. Will Edmonston [W. A. Edmonston, the defendant] and myself were in the room, and " Will said something to him about I would take the deed to the bank for him if he wanted me to, and Bryan called me back to the bed and pulled a deed out of his gown and gave it to me and said: `Take it to the bank and tell Mr. Rice to keep it for me until it is called for,' and I did so, and turned the deed over to Mr. Rice. He talked in a low voice or whisper, and said: `Take it and tell them to keep it until it is called for.' He didn't call any name as to who would call for it."

Bryan Edmonston died about a week after that. The witness, as requested, took the deed and delivered it to Mr. Rice in the bank. It was in an envelope, sealed, when it was handed to the witness, and he next saw it in the same envelope, when it was opened by the public administrator.

On cross-examination the witness stated that he had no conversation with William Bryan Edmonston about what was in the deed except that it was made before he left San Antonio, Texas; that witness read the deed before he delivered it to Mr. Rice; it was the deed in controversy.

J. E. Rice, witness for the plaintiff, testified that he was cashier of the bank of Hornersville, Dunklin county, Mo.; that Solon Davis gave him a deed, and that he put it in the vault with Bryan's other papers, and left it there until after his death. It was the deed in controversy. After Bryan Edmonston's death the public administrator came and called for the papers that belonged to him, and witness delivered them, including the deed. The public administrator looked over the deed, and decided not to take charge of it, but left it in the bank, and the witness then permitted the defendant W. A. Edmonston and R. M. Edmonston to put it on record.

W. F. Rhew testified that he was public administrator in charge of the estate of Bryan Edmonston; that he found the deed in controversy among the papers of Bryan Edmonston; that Mr. Rice, cashier of the bank, brought the deed to the witness with other papers of Mr. Edmonston.

The defendant then offered evidence as follows: The deposition of George M. Clifton, an attorney, who lived in San Antonio, Tex., was read. He testified that at the request of W. A. Edmonston he went on the 20th day of January 1920, to see William Bryan Edmonston at a sanitarium in San Antonio, Tex. William Bryan Edmonston at the time looked as if he were in a low state of tuberculosis. He stated that he had a half-brother; that the two gentlemen present, W. A. Edmonston and R. M. Edmonston, were his cousins, who had accompanied him to Texas on a trip for his health. Witness said William Bryan Edmonston told him that W. A. Edmonston had been a father to him; that he and R. M. Edmonston were very close to him, and assisted him in sickness; he thought he would not live long, and wanted to divide his property between his two cousins and his' half-brother. He asked the attorney to prepare some papers in regard to his property, gave him data and a description of the property, and asked him to prepare a deed. Witness advised him to write some restrictions in the deed, because he might live longer than he expected to. The sick man agreed that a stipulation should be written in the deed that the grantees were to support him and supply his wants, and bury him. A debt of $500 was against the property and the grantees were to relieve the property of that. This conversation took place while the other Edmonstons were out of the room.

The witness prepared the deed, took it to Bryan Edmonston, who read it, discussed its features, and acknowledged it before Mr. Shannon, a notary public, who handed the deed to the witness, witness handed it to the sick man, and the sick man handed it to R. M. Edmonston. Witness then was asked what William Bryan Edmonston said to him at the time he delivered the deed. Witness replied there was a little joking about it; something was said like this: "We have got him stung now; he has to " pay all the bills." Witness did not remember which one of them made the remark. Mr. Shannon and the nurse were in the room at the time. Witness thought the nurse walked out, but was not sure; she was in there a time or two. W. A. Edmonston was not in the room at the time, but R. M. was.

On cross-examination the witness was asked how he got a Missouri form upon which to write the deed. He replied that he was on a deal trading an ice plant in Stockdale, Tex., for some property in Southeast Missouri, that he had some Missouri forms in his office, and used one of them. The witness was then cross-examined about correspondence with Mr. McKay, attorney for the plaintiff. Mr. McKay wrote to Clifton, March 20, 1920, asking him about the preparation of the deed, where he got his blank form, and who was present when the deed was executed. Clifton did not answer that letter, and on March 30th McKay wrote another letter referring to the letter of March 20th and asking Clifton to reply. Clifton then replied, and stated the circumstances of his going to see Mr. Edmonston and preparing the deed, and in his letter he said:

"Mr. Shannon took the acknowledgment, and I handed the deed to the young man. I met. several days before, a Mr. Edmonston, who stated that he was a relative of the sick man at the hotel where I was stopping, who asked me if I would go to the sanitarium as there was a young man who wanted to talk to a lawyer. I went, and did what the sick man requested. I know nothing about this that I wish to conceal."

He was asked why the letter did not state that the deed was handed to R. M. Edmonston; he answered that McKay's letter did not call for everything that took place that day.

J. P. Shannon, notary public, San Antonio, Tex.,...