Lanphere v. Affeld

• Decision Date: 12 November 1936
• Docket Number: No. 33920.,33920.
• Citation: 99 S.W.2d 36
• Parties: LANPHERE v. AFFELD et al.
• Court: Missouri Supreme Court

99 S.W.2d 36

LANPHERE v. AFFELD et al.

No. 33920.

Supreme Court of Missouri, Division No. 1.

November 12, 1936.

Appeal from Circuit Court, Johnson County; Leslie A. Bruce, Judge.

Action by Cora H. Lanphere against Paul O. Affeld, individually and as executor of the last will of Emil O. Affeld, deceased, and others. From a decree for plaintiff, named defendant, personally and as executor, appeals.

Affirmed.

Joseph F. Keirnan, of Kansas City, for appellant.

Jas. A. Kemper and C. B. Liter, both of Kansas City, for respondents.

HYDE, Commissioner.

This is an equitable action seeking to obtain possession of a deed, alleged to have been executed by plaintiff's father and mother and delivered to her by them but withheld from her by her brother, defendant Paul O. Affeld; asking also that title to the land described therein be declared vested in her, as against the claims of all defendants; and praying also an accounting against defendant Paul O. Affeld for the rents and profits of the land. The case was contested only by Paul O. Affeld, answering by general denial. Decree was entered finding the issues for plaintiff, and granting her the relief sought. Paul O. Affeld, hereinafter referred to as appellant, has appealed from this decree, both personally and in his capacity as executor.

This case and another case involving similar issues, brought by plaintiff's sister [Schoenwetter v. Affeld (Mo.Sup.) 99 S.W.(2d) 41, decided concurrently herewith], were heard together on the same day in the circuit court. Both plaintiffs were represented by the same counsel. The parties agreed by stipulation that "objections to the qualification of any witness shall be made as though each case were tried separately and individually, and shall be passed upon by the court as though each case were tried separately from the other, and * * * that the court shall render a separate judgment in each cause, just as though the causes had been separately heard, tried and submitted." Separate decrees were entered, and the causes have been separately docketed in this court although briefed and argued together. We will, therefore, consider them here as separate cases. The evidence of plaintiff's sister Emma Schoenwetter tended to show the facts hereinafter stated. Plaintiff lived with her parents at Holden until 1918. Plaintiff helped her mother in a millinery store and bakery for several years. During that time, plaintiff's father told her that he would give her the store building he owned, which was used as a jewelry store. In 1916, he had a deed to her prepared, but nothing more was said about it until after plaintiff and her sister moved to Kansas City, where they had become interested in some property. They left Holden on March 18, 1918. Later in that year, plaintiff went to Ness City, Kan., to work in a millinery store. Mrs. Schoenwetter remained in Kansas City, and in January, 1920, plaintiff came to visit her. Their father and mother also came to Kansas City at that time. Mrs. Schoenwetter said that after dinner, on the day they arrived, her father gave plaintiff a deed to the jewelry store; that plaintiff thanked him, "took it upstairs and put it in her trunk"; and that she took it back with her to Ness City. She testified that plaintiff thereafter married; that in 1922 plaintiff came to Kansas City again; that during that visit she went with her to visit their parents at Holden; that "at that time Cora told mama that she didn't have a good place to keep her deed and she left it with mother to place in her box with her other papers"; and that this box was kept in the Bank of Holden by her mother. The next year, her mother and father came to live with Mrs. Schoenwetter in Kansas City and her mother died there in 1924. She further testified that thereafter her father "took charge of the box and took most of the important things out and put them in the bank. (Sheffield Safe Deposit Company at Kansas City.) * * * He told Cora he had her deed and he was putting it in there and she could have it any time she wanted it."

Plaintiff's husband testified that after their marriage they lived at Salina, Kan., and that plaintiff had the deed from her father and mother in her possession during that time. He said that it was kept in a letter file he had there until 1922, when she took it to Holden and put it in her mother's box. The evidence of Mrs. William R. Affeld, a sister-in-law of plaintiff and Mrs. Schoenwetter, was offered both for this case and the Schoenwetter Case. The sister-in-law testified that she lived across the street from Mrs. Schoenwetter when their mother and father came to Kansas City in 1920; that the deeds were shown to her when they arrived, one of them made to plaintiff and one to Mrs. Schoenwetter; that their father said to her, "This is my Christmas present to my two daughters"; and that "he said he was going to take the deeds and give them to the girls." She testified to another conversation with him before he went home, as follows: "I said, `I guess the girls were glad to get what you had for them,' and he said, `They sure was thankful.'"

The deed to plaintiff was dated January 10, 1916, and was acknowledged before a notary public of Holden on October 14, 1919. It was a conveyance, in regular statutory form of warranty deed of the premises described, "in consideration of the sum of one dollar and love and affection," without conditions or limitations, except that it stated "the grantors retain possession until after their death." It appears that the father of plaintiff and Mrs. Schoenwetter made a will in 1925 leaving to his son Paul Affeld, their brother, all the property that he had, and that Paul Affeld was the executor of his estate. He took charge of his father's safe deposit box, as such executor, found the two unrecorded deeds therein, and refused to give them up.

Appellant contends that plaintiff was not entitled to the deed and obtained no title thereunder because there was no delivery and because the deed was testamentary in character. Appellant relies upon Coles v. Belford, 289 Mo. 97, 232 S.W. 728, and similar cases. In Coles v. Belford there was not an unconditional delivery. The situation is clearly different here, if the testimony of Mrs. Schoenwetter is true, and it is strongly corroborated by the testimony of her sister-in-law as well as by plaintiff's husband. The finding is warranted by this evidence that the delivery was unconditional, and the trial chancellor so found. While we are not bound by this finding, since this is an action in equity and heard de novo in this court, nevertheless the chancellor's findings are usually deferred to where they depend upon the credibility of oral testimony of the witnesses appearing before him. After carefully considering the whole record, we have decided that his finding of a sufficient delivery should be accepted, and we hold that title did pass to plaintiff thereby subject only to a life estate. See Gillespie v. Gillespie (Mo.Sup.) 289 S.W. 579. See, also, cases cited in Blackiston v. Russell, 328 Mo. 1164, 44 S.W.(2d) 22. The provision in the deed that "the grantors retain possession until after their death," of course, did not make it testamentary in form. "One of the important distinctions between a deed and an instrument testamentary in character is that in a deed a present estate or interest is passed, while in an instrument testamentary in character no part of the title treated is to pass until the death of the grantor. * * * The fact that the enjoyment of the estate is postponed to a future date does not change the instrument, otherwise a deed, to an instrument testamentary in its nature." Sims v. Brown, 252 Mo. 58, loc. cit. 66, 67, 158 S.W. 624, 627. See, also, Murphy v. Gabbert, 166 Mo. 596, 66 S.W. 536, 89 Am.St.Rep. 733; Griffin v. McIntosh, 176 Mo. 392, 75 S.W. 677; Aldridge v. Aldridge, 202 Mo. 565, 101 S.W. 42; Givens v. Ott, 222 Mo. 395, 121 S.W. 23; Terry v. Glover, 235 Mo. 544, 139 S.W. 337; Goodale v. Evans, 263 Mo. 219, 172 S.W. 370; Hohenstreet v. Segelhorst, 285 Mo. 507, 227 S.W. 80; Kanan v. Hogan, 307 Mo. 269, 270 S.W. 646; 11 A.L.R. 23, note; Nalley v. First Nat. Bank, 135 Or. 409, 293 P. 721, 296 P. 61, 76 A.L.R. 625, note; 8 R.C.L. 933, § 11; 18 C.J. 149, § 6; 68 C.J. 613, § 235. See, also, Thorp v. Daniel (Mo.Sup.) 99 S.W.(2d) 42, decided concurrently herewith.

Appellant further contends that the trial court permitted plaintiff to testify in her own behalf, and also permitted Mrs. Schoenwetter to testify to statements made by her father about her deed, and that this was reversible error. Section 1723, R.S.1929 (Mo.St.Ann. § 1723, p. 3994). In an equity case, this court is not required to reverse the judgment because of the chancellor's incorrect rulings on evidence, but although "in a close case, or where a mass of irrelevant and prejudicial proof is allowed * * * it may put a question mark after his decree," this court on appeal usually "considers such evidence in the record as it deems admissible, excludes from consideration evidence improperly admitted, and reaches its judgment on the competent evidence offered without regard to the trial court's rulings. Rinkel v. Lubke, 246 Mo. 377, 152 S.W. 81." Snow v. Funck (Mo.Sup.) 41 S.W.(2d) 2, 5; Blackiston v. Russell, 328 Mo. 1164, 44 S. W.(2d) 22; Farmers' & Merchants' Bank v. Funk (Mo.Sup.) 92 S.W.(2d) 587. Moreover, the stipulation,...