Madget v. Jenkins

• Decision Date: 14 December 1970
• Docket Number: No. 55263,No. 1,55263,1
• Citation: 461 S.W.2d 768
• Parties: Robert E. MADGET, Plaintiff-Respondent, v. Maurice E. JENKINS and Hazel Jenkins, and Phillip Jenkins, Defendants-Appellants, and Walter Andrews, B. A. Andrews, Walter DeWeese, Everett Welsh and Ralph Welsh, Substituted Defendants
• Court: Missouri Supreme Court

Page 768

461 S.W.2d 768

Robert E. MADGET, Plaintiff-Respondent, v. Maurice E. JENKINS and Hazel Jenkins, and Phillip Jenkins Defendants-Appellants and Walter Andrews, B. A. Andrews, Walter DeWeese, Everett Welsh and Ralph Welsh, Substituted Defendants.

No. 55263.

Supreme Court of Missouri, Division No. 1.

Dec. 14, 1970.

Motion to Modify Denied and Modified on Court's Own Motion

Jan. 15, 1971.

James J. Wheeler, Keytesville, Christian F. Stipp, Stipp & Ferguson, Carrollton, for respondent.

Edwin Yagel, Brookfield, Robert Devoy and Richard N. Brown, Associate, Brookfield, for appellants.

LAURANCE M. HYDE, Special Commissioner.

Action to adjudge title in plaintiff (purchaser at an execution sale on a judgment against Maurice E. Jenkins only) of 400 acres of land in Linn County by setting aside two deeds alleged to have been made by defendant Maurice E. Jenkins and wife with intent to hinder, delay and defraud creditors, with a second ejectment count for possession. Defendants' answer, first a general denial, but permitted to be amended at the close of the evidence, alleged title in Phillip Jenkins and Hazel Jenkins after conveyance from Maurice E. Jenkins and wife as tenants by the entirety. Defendants sought to have a determination of title in accordance with their deeds. The court found for plaintiff setting aside the two deeds, quieting title in plaintiff subject to the lien of a deed of trust to Phoenix Mutual Life Insurance Co. securing a note for $65,000, and for possession of the land with judgment for $27,500 for withholding possession on the basis of $25 per acre per year rental value. Defendants Jenkins have appealed.

In 1947, the land involved was conveyed to 'Thomas L. Jenkins and Cordia M. Jenkins, husband and wife, for life, with remainder in fee simple to Maurice E. Jenkins,' their son. Thomas L. Jenkins and Cordia M. Jenkins and January 1962, the Chariton County Grain Co., Inc. sued Maurice E. Jenkins and wife Hazel Jenkins for $6,840.07 for feed and farm supplies. Evidence was heard by a referee, whose report filed October 26, 1964, found that the items of the account were charged to Maurice E. Jenkins only and that Hazel Jenkins had no interest in the livestock for which the feed was purchased. The referee recommended judgment for $6,840.07 with interest at 6% per annum from March 1, 1960. After a hearing on exceptions to this report, judgment was entered against Maurice E. Jenkins only in accordance with this recommendation on December 18, 1965. Execution was issued on August 4, 1966 and levied against the land herein involved. Previously an attempt to levy on personal property had been unsuccessful because Hazel Jenkins, the wife of Maurice E. Jenkins, then claimed joint ownership in all the personal property.

Plaintiff, a member of the Board of the grain company, was the purchaser at the execution sale November 7, 1966 for a bid of $500. Defendants' attorney had announced at the sale that nothing was being sold because Maurice E. Jenkins had no interest to be sold that there were no other bids. This announcement was based on the claim of the validity of a deed later set aside by the court herein. On July 14, 1965, this deed was executed by Maurice E. Jenkins and Hazel Jenkins to create an estate in entirety in Maurice E. Jenkins and Hazel Jenkins, husband and wife. This deed recited: 'This deed given to replace a lost deed heretofore executed by the same parties on the 17th day of July 1954.' On January 11, 1967 a deed was executed by Maurice E. Jenkins and Hazel Jenkins to Phillip Jenkins and Hazel Jenkins deed was also set aside in the judgment in this case. Phillip Jenkins, son of Maurice and Hazel, an engineer employed in St. Joseph, claimed to have worked on the farm during the years 1964--1968, mainly weekends and vacation periods. He testified he purchased a tractor for use on farm in February, 1966 and also seed and fertilizer, farming 38 acres of it that year. He said he farmed 58 acres of it in 1967 and purchased that year, for general use on the farm, a corn planter and a rotary hoe.

In the proceedings before the referee the testimony of Mr. and Mrs. Jenkins was that the livestock on the farm and the machinery belonged to him alone except for a few hogs given to Mrs. Jenkins 'three or four at a time,' about 15 through the year. However, after execution was issued on the grain company's judgment Mrs. Jenkins claimed all the livestock and machinery were owned by them jointly by the entirety. As to the deed of July 14, 1965 reciting it was given to replace a lost deed, the Jenkins' evidence was that it was prepare by their attorney Errol Joyce, now deceased; that Mr. Joyce had prepared the deed referred to as lost in July 1954; and that it had been signed by them and left with him to be recorded. Their evidence was that they first discovered there was no such deed on record when they were obtaining the loan from Phoenix in July 1965. However, they had obtained a loan from the Mutual Benefit Life Insurance Co. in 1954 and from Northwestern Mautual in 1961, as well as a second mortgage to Chillicothe State Bank before making the Phoenix loan. The Jenkinses never attempted to establish a lost deed under the procedure provided by § 527.190, RSMo V.A.M.S.

The court in its decree in this case found as follows: 'The Court finds and holds after mature consideration, that defendants Maurice E. and Hazel Jenkins, defendants, did not, in fact execute deed, as alleged, on the 17th day of July, 1954, transferring title from Maurice E. Jenkins individually with inchoate right to dower in Hazel Jenkins, to tenancy by the entirety; that deed of Maurice E. Jenkins and Hazel Jenkins, defendants, termed a replacement deed dated July 14, 1965, executed to replace deed allegedly made July 17, 1954, but never recorded, was drawn and executed with the intent to hinder and delay judgment creditor, Chariton County Grain Co., a corporation, in collection of account due that company by Maurice E. Jenkins and was executed in fraud of that creditor; that the deed of Maurice E. and Hazel Jenkins, defendants, to Phillip Jenkins and Hazel Jenkins, dated January 11, 1967, was likewise drawn, executed and recorded with intent to hinder and delay said Chariton County Grain Company, was executed with fraudulent intent of both grantors and grantees; It is ordered and adjudgmed that these two deeds be and are set aside and for naught held; That plaintiff is the sole owner of the lands described in Amended Petition, * * *'

Defendants Jenkins (hereinafter called appellants) claim plaintiff's unqualified introduction in evidence of defendants' deed of July 14, 1965 and the referee's report, stating 'the title to the land of the defendants was held by them as tenants by the entirety at the time this account was made,' were conclusive admissions that Mr. and Mrs. Jenkins held title to the land involved by the entirety from July 17, 1954.

However, plaintiff's petition alleged that on the date the deed was executed 'Maurice E. Jenkins was the sole owner' and indebted to the grain company; that there was no consideration for the deed he made that it 'was made for the sole purpose of hindering, delaying and defrauding' his creditors; and that it 'is fraudulent and void.' The petition prayed the court to decree that deed and the later one made to Phillip Jenkins and Hazel Jenkins fraudulent and void. Thus the whole basis of plaintiff's title claim was that these deeds were void. At the trial, plaintiff first offered in evidence the sheriff's deed to him and his check to the sheriff for the amount of his bid. These were received without objection. Thereafter, the deed to the parents of Maurice E. Jenkins for life with remainder to him was received in evidence, then the petition in the grain company's suit on the feed account, the report of the referee, the deed of trust to Phoenix, the Jenkins deed of July 14, 1965 sought to be set aside, the grain company's judgment and execution thereon and other exhibits including a bank financing statement of July 13, 1965 signed only by Maurice Jenkins.

Travelers' Ins. Co. v. Beagles, 333 Mo. 568, 62 S.W.2d 800, 801 (cited by appellants) states: 'Unless there is proof to the contrary, the recitals in a deed must be taken as true.' In that case, this rule was applied to the recital in the deed as to consideration where there was no proof to the contrary. Moreover, in that case, the party who questioned the recital of consideration in the deed was the grantee in the deed and claimed title under it. Appellants also cite Mitchell v. McClelland, Mo.App., 306 S.W.2d 75, 80; Citizens Discount and Investment Corp. v. Wood, Mo.App., 435 S.W.2d 717, 721 and Denton Const. Co. v. Missouri State Highway Comm'n, Mo., 454 S.W.2d 44, 48, but they do not support appellants' contentions. Mitchell held there was no evidence that deeds involved therein had not been executed long before the lien claimed therein had commenced. Citizens Discount denied replevin of an automobile by a finance company where a dealer expressly had been given the right to sell for cash. Denton Construction Co., involving construction of a contract to pave a state highway, held a contractor was entitled to extra compensation for repairing erosion damage to work done by another. As stated in 29 Am.Jur.2d Evidence § 840, p. 932: 'It is well settled, however, that a party who introduces a document in evidence is not precluded from impeaching it by evidence which goes to its invalidity or which tends to show that it has not in law the effect that it purports to have.' As stated in McDowell v. Staley, 231 N.C. 65, 55 S.E.2d 798, 799: 'The rule is that a party who introduces a deed admits its execution but not necessarily the truth of its recitals or its legal effect, and may show by further evidence the truth of the matter and the relation of the deed to the entire transaction.' See also State v. Payne, Mo., 342 S.W.2d...