Klatt v. Wolff

• Decision Date: 07 September 1943
• Docket Number: No. 38493.,38493.
• Citation: 173 S.W.2d 933
• Parties: KLATT et al. v. WOLFF et ux.
• Court: Missouri Supreme Court

173 S.W.2d 933

KLATT et al. v. WOLFF et ux.

No. 38493.

Supreme Court of Missouri, Division No. 1.

September 7, 1943.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

Suit by Ida Klatt and others against Charles A. Wolff and wife to set aside a deed for want of delivery. From a judgment of dismissal, plaintiffs appeal.

Affirmed.

James L. Anding, of Pacific and Randolph H. Schaper, of Washington, for appellants.

John B. Busch, of Washington, for respondents.

VAN OSDOL, Commissioner.

This case involves the title to real estate. It is a suit to set aside a warranty deed to Lot 7 in Walkenhorst's Addition to the town (now city) of Washington, Franklin County, Missouri, the petition alleging the deed to be void for want of delivery. The chancellor found for defendants and dismissed the petition. Plaintiffs have appealed.

The merits of the case involved but one question — the delivery of the deed.

The grantor, Martha Frey, an elderly widow and a resident of Washington, Missouri, died intestate March 11, 1942. She had lived at the home of defendants since the fall of 1941. On January 14th preceeding her death the deed was prepared conveying the property to the defendants. The deed recited a consideration of $1, was acknowledged January 29, 1942, and recorded March 21, 1942. An "Agreement Giving Possession To Real Estate and Premises Before Conveyance of Title" (hereinafter referred to as the "agreement") was also executed; this instrument was not signed until February 27, 1942, although it was in process of preparation when the deed was signed and acknowledged.

The agreement is as follows:

"Agreement made this 14th day of January, 1942, by Martha Frey, a widow, hereinafter called the vendor, and Charles Wolff and Bertha Wolff, his wife, hereinafter called the purchaser, all of Washington, Franklin County, Missouri.

"Whereas by warranty deed executed between said parties bearing date, the 14th day of January, 1942, the said vendor agree to sell, and the said purchaser agree to purchase, a parcel of land together with all improvements thereon described as follows to-wit:

"Lot No. 7 in Walkenhorst's addition to the town (now city) of Washington, Missouri.

"Whereas some detail is likely to occur in consummating said sale and the said purchaser is desirous of taking immediate possession of said premises, now, these present witnesses, that the said vendor, hereby agrees that she will deliver the full possession of said premises as if the conveyance thereof had been executed; that the said purchaser shall be at liberty to make in a proper substantial manner all such alterations and improvements in an addition to the said buildings as they shall require. But subject, in all respects to the appropriations of the said vendor, so that the value of the premises shall not be impaired it is hereby mutually agreed that the purchaser shall have the full right to rent or lease said premises and also to have all rents collected from same for their own use less $ which is due and payable to the vendor, each and every month when rents are paid. It is further agreed when the purchaser has been repaid from rents collected from said above described premises for money expended for alterations and improvements made on said buildings together with all interest due thereon, all rents collected thereafter shall be due and payable to said vendor, until said above deed has been delivered to said purchaser.

"In Witness Whereof, the parties hereto have signed in duplicate copies their signatures this 27th day of February, 1942."

It was the testimony of Fred Jaeger, nephew of the deceased husband of Martha Frey, that Martha Frey had told witness in the early part of March 1942 that she had the deed in her possession and intended to hold it until her death; that, the night Martha Frey died, he talked with the defendant, Bertha Wolff, who stated that Martha Frey had told her of the location of the key to a trunk, and that the defendant, Bertha Wolff, further said, "I have found the key. I have the key in my hand, and I haven't been in there yet"; and that later the defendant, Bertha Wolff, told him that "she had been in the trunk and found all of Martha Frey's papers."

It was the testimony of Mrs. Fred Schwentker (daughter of plaintiff, Ida Klatt, and niece of Martha Frey) that Martha Frey had, a short time prior to her death, told her that she, Martha Frey, had put all of her papers, including the deed, in her trunk; that she was not going to stay at the home of defendants but was going to the "old folks' home."

One F. C. Heidmann, notary public, real estate agent and justice of the peace, prepared the deed and agreement. It was his testimony that Martha Frey had asked him to prepare the deed in September, 1941, telling him: "Something might happen to me, and I want the Wolffs to have the property for taking care of me. I might live a long time, and may be I don't, but I want them to have pay for what they do for me, for taking care of me." The witness further testified that, though the deed had been signed sometime before, it was acknowledged by the grantor at the office of witness on January 29th, at which time the defendants were present; and that, after the deed had been acknowledged, witness handed it to Martha Frey, who "handed the deed over to Mr. Wolff, and she says, `Here is your deed, I want you to keep it.' And that is all she said."

According to the witness, no mention was made of the agreement on the day the deed was acknowledged.

The witness, Heidmann, further testified:

"Q. When did Mrs. Frey first speak to you about an agreement? A. Well, just exactly the dates, I can't recall, but it was sometimes during the entire time that she was doing business with me.

"Q. Well now, was that before January of 1942? A. She made remarks of having some kind of an agreement made between her and Mr. and Mrs. Wolff, so that — she wanted to rent the place out, she intended to have her home with the Wolffs, as near as I can understand it, and she wanted to rent her place out, and it wasn't electrically wired, I believe, and some other improvements that she wanted to have done, and she wanted the Wolffs to advance the money to do that improvements, and then she wanted the Wolffs — to have the Wolffs collect the rents, excepting she was to get about five dollars. But I left that blank because I thought they could arrange that themselves. And then the Wolffs was to get the rent until they were reimbursed for the improvements that they invested on the house. And after that she wanted to collect the rent until her death.

"Q. She wanted the Wolffs to turn the rent over to her until her death? A. Yes, sir."

On cross-examination the witness, Heidmann, testified in part:

"Q. Well, she said that, didn't she — she said she was going to deliver this deed to them after her death? A. No, sir; I don't know that she said that.

"Q. Well, do you remember when your deposition was taken in this case? A. Yes, sir.

"Q. I will ask you if this question was asked you, and you made this answer: `Q. No, the agreement, Mr. Heidmann. A. I mean, in the agreement, as much as I remember, that the understanding between them was that she was to receive five dollars for spending money, and that after her death — I don't know whether that is in the contract or not — but then it was understood that after her death she was to receive — or, they were to receive that deed to the place, and it should be theirs,' did you make that answer? A. Yes, sir.

"Q. That is correct, isn't it? A. That is what she said, she wanted them to have the property after her death.

"Q. Wanted them to have the deed after her death? A. Well, deed, or property.

"Q. Well, that is what she said, isn't it, Judge? A. Yes, sir."

On March 21, 1942, the defendant, Charles A. Wolff, was granted letters of administration in the matter of the estate of Martha Frey; but upon the objection of certain of the heirs at law of Martha Frey, Heidmann called the defendant, Charles A. Wolff, by telephone and advised him to "turn everything he had back to the public administrator;" on the same day a letter was prepared by Heidmann, signed and forwarded by defendant, Charles A. Wolff, to the probate judge of Franklin County. The letter is as follows:

"In answer to our communication over the telephone regarding the estate of Martha Frey, deceased. As to the letters of administration that have been granted to me this morning, wish to state that I hereby, wish to and do hereby withdraw as administrator of this estate.

"Please have the public notice that already has been sent to the Washington Citizen cancelled, as I do not want to act as administrator. I am having a Quit Claim Deed made to quit claim the real estate which has been deeded to me by Warranty Deed, now on record, so that the estate is all in the name and belonging to the estate of Mrs. Martha Frey, deceased."

The further administration of the estate was undertaken by the public administrator. The quit claim deed mentioned in the letter to the judge of probate was prepared but never executed.

It was the testimony of defendant, Bertha Wolff, that she did not authorize the letter. She also denied that she had procured the deed from the grantor's trunk. The defendant, Charles A. Wolff, testified that he followed the advice of Heidmann in sending the letter, and that he, defendant, subsequently changed his mind about "deeding the property over." Vernita Wolff, daughter of defendants, testified that upon the return of her parents and Martha Frey from the office of Heidmann on January 29th Martha Frey said, "That is all finished now, I don't have to worry about that anymore." Other testimony was introduced tending to show that Martha Frey resided with defendants, making no complaint of the treatment she received in their home.

In the consideration of this cause, a suit in equity, it is our duty to review the evidence, determine...