Hein v. Payne

• Decision Date: 31 October 1940
• Docket Number: 36803
• Citation: 144 S.W.2d 122,346 Mo. 967
• Parties: Walter J. Hein and Vina B. Hein, Appellants, v. Amanda Hein Payne
• Court: Missouri Supreme Court

144 S.W.2d 122

346 Mo. 967

Walter J. Hein and Vina B. Hein, Appellants, v. Amanda Hein Payne

No. 36803

Supreme Court of Missouri

October 31, 1940

Appeal from Grundy Circuit Court; Hon. V. C. Rose, Judge.

Affirmed.

Chas A. Miller for appellants.

(1) There was no delivery of the deed because dominion of grantors over it, did not intentionally pass. The deed was left in a place assessible to defendant, but appellants did not intend that it be delivered. There was no intent at the time on the part of the grantors (appellants) to divest themselves of title. McNair v. Williamson, 166 Mo 367; Terry v. Glover, 235 Mo. 544; Tyler v Hall, 106 Mo. 313; Coulson v. Coulson, 180 Mo. 709. (2) There was no delivery of deed in issue because evidence shows it was to become effective upon contingencies, of Amanda Hein dying first, it then to be worked out by appellants and Daniel Hein and if Daniel Hein died first, the deed was to be destroyed. Bunn v. Stuart, 183 Mo. 375; Terry v. Glover, 235 Mo. 544; Coles v. Belford, 232 S.W. 728; Jarboe v. Hey, 122 Mo. 341. (3) The recording of deed is not conclusive as to delivery; and any presumption is overcome by the acts of defendant in waiting to record and in making statements that she had a life dower; and in saying that Walter Hein got the land after her death; and in entering into contract as to taxes in 1932. The deed was not voluntarily put of record by the plaintiffs herein, but in direct violation of their intention and direction. Bunn v. Stuart, 183 Mo. 375.

Ruth C. Woodruff and George E. Woodruff for respondent.

(1) Respondent has the right to insist that the judgment is for the right party on the record. A demurrer ore tenus was interposed. Respondent's additional abstract shows that the petition and answer on which this case was tried are not before the court. The original petition and answer are not, in view of the amendment, a part of the record proper. Whether or not the petition on which the case was tried stated a cause of action or whether or not the answer, undenied by reply, stated a defense thereto, cannot be determined. The appeal should be dismissed where pleadings on which the case was tried are not abstracted. Williams v. Campbell, 123 S.W.2d 87; Eads v. Volmer, 38 Mo. 357; Rozier v. Nations, 178 S.W. 740; Sedgwick Co. v. Newton County, 144 Mo. 301. (2) Abandoned assignments of error will not be considered. Dickson v. Maddox, 48 S.W.2d 873, 330 Mo. 51. (3) Where the evidence shows that the deed was a deed of gift, no valuable consideration therefor is necessary. Clark v. Skinner, 70 S.W.2d 1094, 334 Mo. 1190. (4) Where the deed is given into the possession of the grantee with the intention that the deed have an effect it is effective in passing title according to its terms even though the parties may be mistaken as to the effect the deed has. Mason v. Mason, 231 S.W. 971; Jones v. Jefferson, 66 S.W.2d 555, 334 Mo. 606; Keener v. Williams, 271 S.W. 489, 307 Mo. 682; Miles v. Robertson, 258 Mo. 717, 167 S.W. 1000; Aude v. Aude, 28 S.W.2d 665; Clark v. Skinner, 70 S.W.2d 1094, 334 Mo. 1190; Hale v. Weinstein, 102 S.W.2d 650; Lanphere v. Affeld, 99 S.W.2d 36. (5) Where the evidence is conflicting, the court on appeal will defer to the findings of the chancellor. Rhoads v. Rhoads, 119 S.W.2d 247; Hale v. Weinstein, 102 S.W.2d 650; Lanphere v. Affeld, 99 S.W.2d 36. (6) The declarations, admissions, or course of conduct of the grantee indicating his understanding of the legal effect of a deed cannot change or affect its validity or legal effect. Gorton v. Rice, 153 Mo. 676, 55 S.W. 241; Voigt v. Blanto Co., 46 S.W.2d 927; Wishart v. Gerhart, 105 Mo.App. 112, 78 S.W. 1094. (7) The cancellation of a deed is an exertion of the most extraordinary power of equity and will not be exercised except in a clear case. The burden is on the one seeking cancellation to establish his right thereto by clear, cogent and convincing testimony. Lastofka v. Lastofka, 99 S.W.2d 54, 339 Mo. 770; Aude v. Aude, 28 S.W. 668. (8) A conveyance to defeat a creditor is good between the parties. Only a creditor may question its validity. Stierlin v. Teschemacher, 64 S.W.2d 647, 333 Mo. 1208; Price v. Morrison, 236 S.W. 297, 291 Mo. 249; Raney v. Ins. Co., 246 S.W. 57, 213 Mo.App. 1.

OPINION

Clark, J.

Appeal from the Circuit Court of Grundy County from a decree in favor of defendant in a suit to set aside a deed.

In this court, respondent filed a motion to dismiss the appeal because of the failure of the abstract of the record to comply with our rules in certain particulars. After that appellants filed a motion to supply portions of the record and respondent filed suggestions in opposition. Respondent contends that the abstract, as corrected, still contains fatal defects as follows: (1) There is no record entry that a bill of exceptions was filed nor an appeal taken; (2) The purported judge's certificate does not show that a bill of exceptions was approved and ordered filed; (3) The purported bill of exceptions does not show the filing of the motion for a new trial, the ruling thereon, or exceptions to such ruling.

The certificate of the judge shows only that the bill of exceptions was presented and does not show that it was approved and ordered filed. However, the certificate of the clerk shows that the bill was approved by the court in term time, ordered filed, and actually filed and made a part of the record. The bill of exceptions does not make any mention of a motion for new trial. The abstract sets out the motion followed by the words: "filed April 24, 1939, Sam Knight, Cir. Clerk and Ex-officio Recorder." Then follows a record entry showing that the motion for new trial was taken up by the court and overruled, and an appeal allowed.

Appellants' abstract sets out a petition filed January 21, 1939, and an answer filed February 20, 1939. Respondent has filed an additional abstract pointing to the book and page of the court record showing an entry made on March 31, 1939, as follows: "By leave of court plaintiffs amend petition . . . By leave of court defendant files answer to plaintiffs' petition as amended." Respondent's additional abstract does not complete the record entry nor supply the answer filed.

Appellants' abstract falls far short of being in the usual, approved form, and a strict construction of our rules would justify us in dismissing the appeal. The most serious defect is the failure to clearly show that the abstract sets out the pleadings on which the case was tried. However, as respondent's additional abstract does not show that plaintiffs filed an amended petition, but authorizes the inference that they amended their original petition by interlineation; and, as our rule Number 9 provides that the clerk "will only insert the last amended pleading and will set out no abandoned pleading," we are authorized to assume that appellants' abstract sets out the petition as amended. Without establishing a precedent for the future, we will overrule respondent's motion to dismiss the appeal.

Appellants are husband and wife; appellant, Walter J. Hein, being the son of Daniel Hein, deceased. Respondent, Amanda Hein Payne, is the stepmother of Walter J. Hein and the widow of Daniel Hein, she having remarried after the death of Daniel Hein. On December 26, 1931, Daniel Hein and wife executed and delivered to appellants a deed conveying to them the land now in controversy, but reserving a life estate in the grantors. At the same time the appellants signed and acknowledged a deed purporting to convey the same land back to Daniel Hein and his wife, the respondent. Appellants recorded their deed on the day it was executed. The deed to Daniel Hein and wife was recorded by respondent on October 30, 1936. Thus far there is no dispute as to the facts.

The sole question for decision is as to whether the latter deed, from appellants to Daniel Hein and wife, was delivered with the intention of passing the title.

Plaintiffs (appellants) offered in evidence a marriage contract, entered into by Daniel Hein and respondent at the time of their marriage in 1923, in which it was provided that respondent should have a life estate in the land. Plaintiffs testified that the deed in question was executed at the home of Daniel Hein and left in the possession of respondent; that respondent then agreed that, if she survived her husband Daniel Hein, she would destroy the deed without recording it; but, if Daniel Hein survived her, he and the...