Kansas City Granite & Monument Co. v. Jordan

• Citation: 295 S.W. 763,316 Mo. 1118
• Decision Date: 09 April 1927
• Docket Number: 25931
• Parties: Kansas City Granite & Monument Company, James P. Sexton, A. A. Bianchi and Mary Bianchi, Appellants, v. Lillian B. Jordan et al
• Court: United States State Supreme Court of Missouri

295 S.W. 763

316 Mo. 1118

Kansas City Granite & Monument Company, James P. Sexton, A. A. Bianchi and Mary Bianchi, Appellants, v. Lillian B. Jordan et al

No. 25931

Supreme Court of Missouri

April 9, 1927

Appeal from Jackson Circuit Court; Hon. Charles R. Pence Judge.

Reversed and remanded (with directions).

E M. Bartlett for appellants Kansas City Granite & Monument Company and James P. Sexton.

(1) The court erred in refusing an order permitting the appellants to have the deed photographed in order to lay the foundation for expert testimony with regard to its genuineness, the change in the instrument appearing to have been effected by a different hand writing and in a different ink from that employed elsewhere in the writing in the deed, the alterations being sufficiently suspicious to call for proof from the party producing the instrument of its genuineness. 3 Ency. Law & Prac. 476, 478; Paramore v. Lindsey, 63 Mo. 63; Smith v. Forry, 69 Mo. 142; Stilwell v Patton, 108 Mo. 352; Powell v. Banks, 146 Mo. 620; State v. Chick, 146 Mo. 645; Kelley v. Thuey, 143 Mo. 422; Jackson v. Osborn, 2 Wend. (N. Y.) 555; Rogers v. Page, 140 F. 596; Crabtree v. Clarks, 20 Me. 337; McMecken v. Beauchamp, 2 La. 290. (2) The court erred in its judgment and decree in holding that Lillian B. Jordan continued in possession of said property which at the death of her former husband, Harry F. Kinsinger, was her homestead. She never claimed it in her answer or otherwise as her homestead -- nor as exempt as her homestead. Having no family or children and not being a housekeeper the head of a family, she could not claim the property as exempt under the statute. Sec. 5853, R. S. 1919; 15 Am. & Eng. Ency. Law (2 Ed.) 546, 773; January v. Marler, 274 Mo. 546. (3) A widow with no one in the house but servants is not the head of a family within the meaning of the exemption statute. Murdock v. Dalby, 13 Mo.App. 41. (4) The object of the statute is to protect a family having a head. Ward v. Tunnah, 25 Ark. 103; Harbison v. Vaughn, 42 Ark. 539; Barnett v. Knight, 7 Colo. 365; Charles v. Lamberson, 1 Iowa, 441, 63 Am. Dec. 457; Cook v. McChristian, 4 Cal. 26; McMurray v. Shuck, 6 Bush. (Ky.) 111; Fore v. Fore, 2 N.D. 267; Franklin v. Coffee, 18 Tex. 415, 70 Am. Dec. 292; 15 Am. & Eng. Ency. Law, p. 535, sec. 7, note 4. (5) The family is a necessary prerequisite for exemption of a homestead. 15 Am. & Eng. Ency. Law, p. 535, note 5; Murdock v. Dalby, 13 Mo.App. 41; State v. Kane, 42 Mo.App. 253; Graham v. Lu, 69 Mo. 334; Ridenour Baker Grocery Co. v. Monroe, 142 Mo. 165; Bushwell v. Loomis, 234 Mo. 137. (6) Even if the real owner of said property she is estopped by her acts and declarations under oath from claiming to be the owner, and she waived her right to said property and ratified the title which was of record in Oloff. 11 Am. & Eng. Ency. (2 Ed.) p. 446. (7) As a matter of law Oloff could not hold the property in secret trust as against appellees creditor. In order to create an express or implied trust there must be a lawful definite object to which the subject-matter of the trust is to be devoted. The object of the trust must be legal, for no valid trust can be founded on an interest derived from an illegal contract or established in contravention of the general policy of the law. Lewis on Trusts (8 Ed.) 84, 94; Hill on Trusts (4 Am. Ed.) 45; 28 Am. & Eng. Ency. Law, p. 866, sec. D. (8) A debtor cannot convey his property in trust for himself and by such transfer defeat the rights or remedies of his creditors. All conveyances for the use of the grantor are fraudulent and void against creditors and others having just claims upon the grantor or upon the property conveyed. 14 Am. & Eng. Ency. Law, p. 247-aa; 2 Perry on Trusts (3 Ed.) sec. 165; Roberts v. Barnes, 127 Mo. 405, 48 Am. St. 640; Nat. Bank v. Powers, 134 Mo. 432; State v. McBride, 105 Mo. 265. (9) The deed in any view is void as against the purchaser (Sexton) for value from Oloff, Sexton being without actual notice of an unrecorded deed from Oloff, even if such deed actually existed. Trigg v. Vermillion, 113 Mo. 231; Ladd v. Anderson, 133 Mo. 265; Vance v. Corrigan, 78 Mo. 94; R. S. 1919, sec. 2200. (10) A bare inspection of the deed shows it to be a forged and altered instrument, and Handy's attempted explanation does not explain. If the extrinsic evidence derived from an inspection of the writing shows the alteration to be of a spurious character, warranting the inference that it was not honestly and properly made, the party offering the instrument so altered must explain it. 3 Enc. Law & Prac. 476; Paramore v. Lindsey, 63 Mo. 63; Smith v. Ferry, 69 Mo. 142; Stilwell v. Patton, 108 Mo. 352; Powell v. Banks, 148 Mo. 620; State v. Chick, 146 Mo. 645; Burton v. Ins. Co., 96 Mo. 204; German Am. Bank v. Manning, 133 Mo.App. 294. (11) When a title has vested in an innocent purchaser without notice of outstanding equities he can convey a good title to one having notice of such equities and where no fraud is shown it is not necessary that the holder of such deed should have paid the reasonable value of such real estate. Campbell v. Gas Co., 84 Mo. 352.

Gamble, Pugh & Browne for appellants A. A. and Mary Bianchi.

(1) Whether Sexton or his attorney believed Oloff took title in trust for Kinsinger is not material, because previously she had sworn otherwise, and is now estopped from claiming that they should have known her testimony was untrue. (a) Kinsinger's unexplained contradiction of her former testimony defeats her later testimony as a matter of law. Steele v. Ry. 265 Mo. 97; Monroe v. Ry., 249 S.W. 644. (b) Even if Sexton's title were bad, which it is not, still it is the validity of the title of Bianchi, not of Sexton, that is involved; and Bianchi's title is good unless he had actual notice that Sexton's title was bad, if it was. R. S. 1919, Secs. 2198, 2199, 2200; 2 Devlin on Deeds (3 Ed.) p. 1378, sec. 746. (2) Notice to a grantee like Bianchi, or to any other grantee, of an unrecorded deed, is not "actual" under our recording act, unless he has personal knowledge of such deed, or actually knows that by ordinary inquiry he would learn it. Beatie v. Butler, 21 Mo. 313; Vaughn v. Tracy, 22 Mo. 415; Vaughn v. Tracy, 25 Mo. 318; Speck v. Riggin, 40 Mo. 405; Maupin v. Emmons, 47 Mo. 304; Rhodes v. Outcalt, 48 Mo. 367; Whitman v. Taylor, 60 Mo. 127; Drey v. Doyle, 99 Mo. 459. (3) For a grantee to take title with actual notice that it is bad is fraud, and therefore the burden of proving it is upon the party asserting that the grantee had actual notice. Ladd v. Anderson, 133 Mo. 625; Strong v. Whybark, 204 Mo. 241; Henderson v. Calloway, 211 Mo. 536; Anderson v. Cole, 234 Mo. 1; Harrison v. Moore, 199 S.W. 188. (4) Bianchi paid full value, and the $ 900 consideration named in the Oloff-Sexton deed was no notice of any infirmity therein, as deeds purporting to be for a "valuable" consideration, however small, as distinguished from those purporting to be for merely a "good" consideration, do not charge the purchaser of a title dependent upon them with notice of any infirmity therein. State Bank v. Frame, 112 Mo. 502; Stuart's Appeal, 98 Pa. St. 377; Strong v. Whybark, 204 Mo. 341, 12 L. R. A. (N. S.) 240; Monroe v. Ry., 249 S.W. 644. (5) Kinsinger's possession was not notice to Bianchi of her claim of title, because: (a) Under our Recording Act possession alone neither puts a purchaser of the record title upon inquiry, nor is it sufficient to uphold a finding of "actual notice." Beatie v. Butler, 21 Mo. 313; Vaughn v. Tracy, 22 Mo. 415; Vaughn v. Tracy, 25 Mo. 318; Maupin v. Emmons, 47 Mo. 304; Drey v. Doyle, 99 Mo. 459; McMurray v. McMurray, 258 Mo. 405. (b) Possession such as Kinsinger's, which was only a "retained" possession, after her deed to Scott and after foreclosure of the superior lien of the Dierks Lumber Company, is not only no "actual notice" to a purchaser of the record title, but is not even sufficient as evidence to support a finding that such purchaser had such notice. Bloomer v. Henderson, 8 Mich. 395; Van Keuren v. Central, 38 N. J. L. 165; Hockman v. Thuma, 60 Kan. 519. (c) Possession by Kinsinger is neutralized by her disclaimer of title in her testimony at the abatement trial. Vaughn v. Tracy, 22 Mo. 414; Garrett v. Wiltse, 252 Mo. 699. (d) The facts and circumstances attending Kinsinger's possession are not sufficient as circumstantial evidence to supplement the kind of possession that she had to an extent sufficient to uphold any finding of actual notice that she claimed ownership as against Oloff. Beatie v. Butler, 21 Mo. 313; McMurray v. McMurray, 256 Mo. 405. (6) Bianchi had no notice of what Ringolsky thought or did, because Ringolsky did not represent Bianchi. They were and yet are total strangers, and Ringolsky did not appear in the chain of title. (7) If Kinsinger paid the consideration for the Pickett-Oloff deed, then it was at her own instance that Pickett inserted Oloff's name as grantee therein, and it necessarily was with the fraudulent intent by Kinsinger to defeat collection of plaintiff's judgment debt, which makes Oloff's deed to Sexton valid and estops her from questioning it. Rowley v. Rowley, 197 S.W. 152; Butte Inv. Co. v. Bell, 201 S.W. 880.

J. M. Johnson, D. W. Johnson and S. M. Johnson for respondent.

(1) The property in controversy being exempt, that is to say, a homestead of a value not exceeding three thousand dollars the Monument Company, as a judgment creditor, was not entitled to complain of any conveyance made by the homesteader, even if such conveyance were made with the intent of hindering and defrauding the creditor. Having no right to sell said property under execution, the creditor had no right to complain of any conveyance made by the debtor. Pocoke...