Holliday v. Clark
| Decision Date | 14 December 1937 |
| Docket Number | No. 35167.,35167. |
| Citation | 110 S.W.2d 1110 |
| Court | Missouri Supreme Court |
| Parties | HOLLIDAY et al. v. CLARK et al. |
Appeal from Circuit Court, Atchison County; Thomas A. Cummins, Judge.
Action by John W. Holliday against Martha Clark and another. From an adverse decree, defendants appealed. Pending the appeal, the original plaintiff died, and John W. Holliday, Jr., and another were substituted as plaintiffs.
Affirmed.
Walter L. Mulvania, of Rockport, and Wright & Ford, of Maryville, for appellants.
Clayton W. Allen, of Rockport, William R. Littell, of Tarkio, and Henry B. Hunt, of Rockport, for respondent J. W. Holliday, Jr.
Gerlash & Gerlash, of Tarkio, for respondent Ora Emmert.
HYDE, Commissioner.
This is an action in equity seeking to set aside two deeds to land in Atchison county, and to have the land described therein declared to be the land of the original grantor, now deceased, subject to disposition under the terms of her will. The court entered a decree, granting this relief, from which defendants have appealed.
There was an agreed statement of facts in the trial court, as follows:
"It is agreed that on the 5th day of November, 1932, Gussie C. Holliday was the owner and in possession of the lands in controversy; that on said date the said Gussie C. Holliday, her husband, Dr. John W. Holliday, joining therein, executed a deed conveying said land to John Wesley Holliday, Jr., and thereupon and on the same day the said John Wesley Holliday, Jr., his wife joining therein, executed a deed to said land, in which said deed the name of the grantee was left blank and delivered said deed to the said Gussie C. Holliday; that the said Gussie C. Holliday retained possession of said deed from that time on until on or about the _____ day of March, 1935; that at that time the said Gussie C. Holliday was confined to the hospital in Maryville, Missouri, and possession of the deed was obtained by Fred H. Clark and that shortly thereafter and on the 8th day of March, 1935, the said Gussie C. Holliday died and the said Fred H. Clark, after the death of the said Gussie C. Holliday inserted, or caused to be inserted, the name of Martha Clark in said deed, and filed said deed in the office of the Recorder of Deeds of Atchison County, Missouri, on the 11th day of March, 1935."
Defendants offered no evidence and the only evidence, other than the agreed facts, was the testimony (as plaintiffs' witnesses) of John Wesley Holliday, Jr. (the original grantee), and Mr. Hackett, a banker at Tarkio, with whom Mrs. Holliday advised about the transaction. Their testimony only showed that Mrs. Holliday made the original deed to John Wesley Holliday, Jr., without consideration so that title would not appear of record in her name (for reasons not disclosed); that at the same time she took a deed back from him without any grantee being named therein; and that this deed thereafter remained in her possession without any grantee's name being added. John Wesley Holliday, Jr., and his wife filed an answer in the case, which was originally commenced by his father, now deceased, as sole plaintiff, admitting the facts stated in the petition; and stating "that they each consent to the cancellation of the deeds herein mentioned and agree that the lands described therein may be decreed to be a part of the estate of Gussie C. Holliday, deceased, at the time of her death, and that the court may so decree." A general denial was filed on behalf of defendant Martha Clark. Pending this appeal, the original plaintiff died and his two children (John Wesley Holliday, Jr., and his sister) have been substituted as plaintiffs.
Defendants assign error in allowing John Wesley Holliday, Jr., to testify; but disregarding all oral testimony (in an equity case incompetent evidence can be disregarded on appeal) and considering only agreed facts, the decree must nevertheless be upheld. It appears prima facie from the agreed statement (and from the pleading's admissions) that Mrs. Holliday put the title in John Wesley Holliday, Jr., as trustee for her benefit only and not with any intention...
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