Houston v. Sparks

• Decision Date: 09 April 1921
• Docket Number: No. 22014.,22014.
• Citation: 230 S.W. 70
• Parties: HOUSTON v. SPARKS et al.
• Court: Missouri Supreme Court

230 S.W. 70

HOUSTON v. SPARKS et al.

No. 22014.

Supreme Court of Missouri, Division No. 1.

April 9, 1921.

Appeal from Circuit Court, Clinton County; A. D. Burnes, Judge.

Suit by Mary A. Houston against George C. Sparks and another. Decree of dismissal, and plaintiff appeals. Affirmed.

This is a suit in equity to set aside a deed from defendant George C. Sparks to defendant Zechariah T. Sparks (both respondents herein), conveying four acres of improved land lying within the corporate limits of Plattsburg, Mo., and seeking to have title to said land vested in plaintiff (appellant herein). Plaintiff also seeks to obtain possession of said land, with damages for the withholding thereof, and monthly rents and profits.

Defendant George C. Sparks is the son of defendant Zechariah T. Sparks. In the year 1897 defendant Zechariah T. Sparks acquired title to the land in controversy and built a residence thereon. From 1897 up until some time in the year 1900 it appears that Zechariah T. Sparks lived on said property with his wife. In 1900 the wife died, and he remained a widower until about 1907, when he remarried. During all of that time, however, and up until the time of the trial of the case, he continued to reside on the said property. On August 20, 1900, defendant Zechariah T. Sparks, then single, executed a warranty deed conveying the said land to defendant George C. Sparks, then a minor aged 20 years, for a recited consideration of $1,000. The testimony of both said defendants was to the effect that this consideration was paid in cash, and the record reveals no evidence controverting that fact. This deed was filed for record on August 20, 1900, the day of its execution.

On September 15, 1900, one C. B. Davis obtained judgment on a note in the circuit court of Clinton county, against defendant Zachariah T. Sparks, for the sum of $323 and costs. Both defendants George. C. Sparks and Zachariah T. Sparks testified that they did not know of the institution of suit on said note until three or four days after the execution of the deed of August 20, 1900. There was no evidence tending to prove to the contrary. As far as can be gathered from the record, this judgment was never satisfied.

On September 25, 1901, defendant George C. Sparks, who had reached his majority on June 11, 1901, executed a warranty deed conveying the aforesaid land back to defendant Zachariah T. Sparks, for a recited consideration of $800. The only testimony of defendant George C. Sparks with respect to the payment of this consideration was as follows:

"Q. You paid $1,000 for it (referring to the property)? A. Yes, sir.

"Q. Sold it back for $800? A. Yes, sir."

The testimony of defendant Zachariah T. Sparks relative to said consideration was as follows:

"Q. You sold it to George and George sold it back to you? A. Yes, sir.

"Q. How much did you pay him for it at that time? A. I don't know just what it was.

"Q. $300 or $400? A. I suppose more than like; maybe more than that. I don't remember.

"Q. Did you pay him the money? A. Yes, sir.

"Q. Just turned the money to him? A. Yes, sir.

"Q. You did not owe him anything? (No answer.)

"Q. Did George sell it to you for less than he paid? A. Made me the deed back.

"Q. Make it back for the same price? A. Something similar.

"Q. Do you know what it was? A. No; I don't know exactly. It has been so long.

"Q. You offered—you have forgotten all about that? A. I don't forget everything.

"Q. How did you pay him? A. Money.

"Q. You took the money and paid it before John and Dan, too, didn't you? A. I don't know as I did.

"Q. You did not do it? A. I did not say so.

"Q. You did not make any payments in Frost's office? A. No, sir.

"Q. Pay it afterwards? A. I did not pay any in John Frost's office.

"Q. The facts is you did not pay him a dime, did you, Mr. Sparks? A. Do you say I did not?

"Q. Isn't that a fact that you never paid him a dime? A. No, sir; I did not say that.

"Q. Isn't that a fact? A. No, sir; it is not.

"Q. How much did you pay him? A. I told you I do not know.

"Q. You have just forgotten about it? A. I am just like you—I forget things sometimes."

There was no other evidence bearing upon that question. With respect to the execution and delivery of this last-mentioned deed, Mr. Dan Frost, counsel for defendants, who took the acknowledgment to the same, testified as follows:

"Q. Did you draw the deed in question here from George C. Sparks to Zach T. Sparks? A. Yes; I drew it in my office, and I drew it on the date that is set forth in the deed on the 25th day of September, 1901.

"Q. What was done with that deed afterwards? A. I would not pretend at this time to recollect the words of the conversation except that in substance Mr. Zach Sparks told me to file it away there and keep it for the present. I would not say except I know what the substance of it was and I put it in the box in our sliding desk called `deed box,' and it stayed there.

"Q. It was delivered to you for Mr. Sparks? A. Yes; Mr. Sparks was there—Mr. Zach Sparks.

"Q. Do you know how long that deed lay there, and when it was recorded? Of course, it shows itself. A. I recollect when it was recorded.

"Q. Do you know who took it over? A. I don't believe I saw it. I did not myself."

Mr. John Frost, then associate counsel for defendants, testified as to the recording of the same as follows:

"Q. Do you know who recorded this deed or had it recorded? A. I did.

"Q. The deed of trust—do you know who recorded that? A. I did.

"Q. How did you happen to record it then? A. I drew the deed of trust—loaned Mr. Sparks the money for my sister-in-law and the deed was in our box, had been left there and there had been instructions regarding it from Mr. Sparks, but I neglected to record it, and when I drew the deed of trust, I laid it in there, and then when they levied on this property of Mr. Sparks under a judgment of George Sparks, I went over and recorded it. I looked on the record and lo and behold, I found the deed from George to Mr. Sparks, made in 1901, had not been recorded, and I goes to my office and gets the deed and the deed of trust and take them both over and record them in the recorder's office."

Said deed was filed for record on November 19, 1912, and recorded in Book 115 at page 446 of the Records of the Recorder's Office for Clinton County.

At the time of execution of the aforesaid deed of August 20, 1900, by defendant Zachariah T. Sparks to defendant George C. Sparks, said George C. Sparks was living with his father and brother on the property in controversy, and continued to so live with the father until about the year 1906. During the time that he (George C. Sparks) held title to the said property the father did not pay rent therefor, nor did the son request any. About the year 1906 defendant George C. Sparks rented a dwelling house in Plattsburg belonging to plaintiff and moved into the same. The rent which accrued was paid to J. W. Houston, husband of plaintiff, who handled the property for his wife. According to the testimony of said J. W. Houston, defendant George C. Sparks paid the rent "pretty good" until about 1908, when he began getting behind; that "he got behind about 12 months, and I wrote him, and he came up and seen me, and he says, `Don't bother me; and I will pay you in advance every month and I will try to pay you $5 to $10, put it in the bank.' I said that was all right. He paid three months, if I am not mistaken, in the bank, and he quit, and when he quit putting the money in the bank I got at him to get out;" that, when defendant was behind "something like $100," he (Houston) wrote him a letter that he wanted the house. Upon being asked, "What investigation did you make as to his being solvent?" the witness answered, "After that I came down and I had Mr. Searce to see the records, and he said the records are all clear— the records were clear." Upon further question, "Tell what you done then," witness answered: "I came to satisfy myself. Mr. Hubbard got the books and he showed me, and the deeds were all in George Sparks, and I investigated the matter, and I goes ahead and tried to get my rent, and he would not pay it. I brought a suit and had John Frost to take care of it for me, knowing that he had `the land. I had them do it, and he recorded the deed in the circuit clerk's office."

On November 21, 1910, plaintiff obtained judgment before a justice of the peace of Clinton county against defendant George C. Sparks, for possession of the property up to then occupied by him and for $158.30 rent accrued and $4.20 costs. A transcript of this judgment was filed in the office of the clerk of the circuit court for Clinton county on September 16, 1911. On April 22, 1913, at the request of plaintiff, an execution was issued upon the said judgment, directed to the sheriff of Clinton county, who thereupon levied upon all the right, title, and interest of defendant George C. Sparks in and to the property in controversy. Thereafter, to wit, on September 22, 1913, while the circuit court for Clinton county was in session, after having given 20 days' notice of the time, terms, and place of sale, and of the property to be sold, by advertisement in the Clinton County Democrat, the sheriff sold the said property to plaintiff, she being the highest and best abider, for the price and sum of $20. Thereafter, to wit, on October 6, 1913, the sheriff executed, acknowledged, and delivered to plaintiff a deed conveying to her all the right, title, and interest of defendant George C. Sparks in and to the said property.

In the course of the direct examination of J. W. Houston he testified as follows:

"Q. Did you at any time after you filed this judgment and took the judgment and before it was recorded, did you ever have cry" knowledge that there was a warranty deed out that was unrecorded from George C. Sparks to his father? A. I did not know anything about it.

"Q. Did you watch the record to see whether or not...