McClendon v. Johnson, 47278

• Decision Date: 11 July 1960
• Docket Number: No. 47278,No. 1,47278,1
• Citation: 337 S.W.2d 77
• Parties: Magnolla McCLENDON, Appellant, v. Herman JOHNSON, Respondent
• Court: Missouri Supreme Court

Page 77

337 S.W.2d 77

Magnolla McCLENDON, Appellant, v. Herman JOHNSON, Respondent.

No. 47278.

Supreme Court of Missouri, Division No. 1.

July 11, 1960.

W. W. Sleater III and Suelthaus & Krueger, St. Louis, for appellant.

Howard Elliott, Edward D. Weakley and Boyle, Priest, Elliott & Weakley, St. Louis, for respondent.

HOLLINGSWORTH, Judge.

Action to determine title to and, in the alternative, for partition of certain real estate in the City of St. Louis, Missouri, to wit: Lot 66 of Finney Avenue Addition, in Block 3746, together with improvements thereon, known as 4256 W. and 4256a W. Cook Avenue. Count one of the petition alleged that plaintiff, Magnolia McClendon, was the fee simple owner of said lot and sought to quiet her alleged title as against any claim of title asserted by defendant, Herman Johnson. Count two prayed that should the court ascertain and adjudge title to be in both plaintiff and defendant, then that partition be decreed and the real estate ordered sold and the proceeds divided between the parties as their interests appeared. Defendant, by answer and cross bill, denied plaintiff's title to any portion of said real estate and asserted that defendant was the record and fee simple owner of an undivided one-half interest therein. Plaintiff, in reply, alleged that the record title asserted by defendant was procured by fraud, undue influence and coercion and through an instrument that was testamentary in character, without consideration and was void. The trial court found and held that plaintiff and defendant were the owners of said real estate as tenants in common, each owning an undivided one-half interest, and ordered partition and sale thereof. Plaintiff appealed.

Although other questions are presented and hereinafter considered, the essentially basic issue turns upon the proper construction and validity of a deed appearing in the chain of title, whereby the real estate was conveyed to Alexander Johnson and plaintiff, Magnolia McClendon, 'as joint tenants and not as tenants in common, with right of survivorship.' Thereafter, Alexander conveyed his interest in the joint tenancy to himself and to defendant, Herman Johnson, 'as joint tenants, and not as tenants in common.' Plaintiff contends, in substance, that, by virtue of the conveyance to her and Alexander as joint tenants with right of survivorship, she and Alexander (now dead) held mere life estates in the land until the fee vested in plaintiff as the survivor of them, and that the deed made by Alexander to defendant conveyed nothing more than Alexander's life estate. Defendant contends that the conveyance to Alexander and Magnolia vested in them a classical joint tenancy, whereby they became the fee simple owners of the property as joint tenants and that, when Alexander conveyed his interest therein to himself and defendant as joint tenants, the joint tenancy theretofore existing between Alexander and Magnolia was severed by operation of law and Alexander and defendant became the owners of an undivided one-half interest in said real estate as joint tenants; and that, upon the death of Alexander, defendant became and is now the owner of an undivided one-half interest in the real estate.

Alexander Johnson was the father of plaintiff Magnolia and the uncle of defendant Herman. On and prior to September 17, 1947, Alexander owned the real estate in fee. The several subsequent conveyances thereof were as follows:

(1) On September 17, 1947, Alexander, joined by his wife, Lula, executed and delivered to plaintiff Magnolia their general warranty deed to the real estate in question, reserving unto themselves and the survivor of them a life estate therein;

(2) On April 26, 1949, by deed delivered and duly recorded, Lula (from whom Alexander had obtained a divorce) quitclaimed all of her right, title and interest in said real estate to plaintiff;

(3) By general warranty deed dated July 23, 1949, and recorded August 15, 1949, plaintiff Magnolia and Alexander, for a recited consideration of $10, conveyed said real estate to Henry F. Brauer (obviously a party used as a conduit of title) of the City of St. Louis;

(4) By quitclaim deed dated August 10, 1949, recorded August 15, 1949, Henry F. Brauer, for a recited consideration of $10, conveyed the property to Alexander and plaintiff Magnolia 'as joint tenants and not as tenants in common, with right of survivorship, * * * to have and to hold the same, * * * as joint tenants and not as tenants in common, with right of survivorship, and to their heirs and assigns forever';

(5) By quitclaim deed dated and recorded March 29, 1955, Alexander, for a recited consideration of $1, conveyed to 'Alexander Johnson and Herman Johnson (defendant herein), as joint tenants, and not as tenants in common, * * * all my right, title and interest in and to [the property] to have and to hold the same, * * * unto [Alexander and Herman], and to the survivor of them, and to the heirs and assigns of such survivor forever.'

At trial, plaintiff testified: Alexander had divorced his second wife, Lula, and lived in the property. When he retired from railroad work (as a porter) in 1947, he was in pretty good health, but his eyes were getting bad. About eight years ago, he had one eye removed and the sight in the other was not good. He had been ill for the past three or four years before his death on March 8, 1957, at the age of 90 years, but not bedfast. (A certified copy of his death certificate, the factual data for which was admittedly furnished by plaintiff, states that he was 76 years of age at his death.) He could read until the latter years of his life but could not see to write too well.

On cross-examination, plaintiff stated that when she furnished the data from which the death certificate was made she did not know Alexander's age; that she knew of no facts showing or tending to show that the deed executed by Alexander to defendant was obtained by fraud, misrepresentation, undue influence, duress or coercion, other than that defendant was supposed to 'do something for him and he didn't'; and that defendant 'never came to see about him or nothing of the kind, and he wanted to take him to some lawyer after I brought him from the hospital. He called and wanted him to take him to the lawyer's and wanted some papers. He wasn't even able to walk around the house.'

Plaintiff proffered in evidence certain portions of a deposition of defendant taken at the instance of plaintiff. Defendant objected, primarily upon the grounds that they were violative of the provisions of the Dead Man's Statute (Section 491.010 RSMo 1949, V.A.M.S.). ¹ During the course of proffering the various portions of the deposition numerous specific objections, interspersed by lengthy colloquy between the court and counsel, were also made. Apparently, the court was of the opinion that inasmuch as it appeared that each of the parties had taken the deposition of the other, the provisions of Sec. 491.010 may have been waived, but that none of the portions offered had any material bearing upon the issues and that all of them should be excluded. The portions proffered cannot be precisely determined. We, therefore, deem it advisable to set forth all portions of the deposition that can have any possible bearing upon the issues and hereinafter determine the propriety and effect of the ruling made by the court.

In his deposition, defendant had testified: He is 44 years of age, a nephew of Alexander, and had known and frequently visited him since childhood. He first met Magnolia in 1950. He never saw her again until 1957, the year Alexander died. He claims an interest in the property here in suit.

'Q. How come you have got such a claim, how did that come about? A. * * * In 1955 my uncle called for me to come in and see him, which my wife answered the phone, she passed the word on to me. I went down on a Sunday and saw him that afternoon, and he told me that he wanted to see me and show me a few papers that he had around the house, and after I looked at the papers he told me to take them home, look them over carefully and see what I though about them.

'Q. What papers were these? A. A few papers like burial, insurance and a few old deeds which he had around there, and that is about all, so I took them back, asked him what did he want me to do about it. He says, well, he thought, the main thing he wanted me to have an interest in part of the property. * * * So after I asked him about this here half of the property, he said, well, he wanted me to have half, because I had a family, and I was trying to do the thing that was right, and I was a church worker, and he though that I was entitled to half, and some day that I could get off, get four hours, for he and I to go to the courthouse and get it straightened out, which we did, and I asked for four hours' leave. We went there one afternoon and went up to the Court House. The gentleman in there, the lawyer, he drawed up some papers, which I took my uncle along, and we all went up to the desk together, and he drew up the papers and asked my uncle was that so, that he wanted me to have half of the place, and he said yes, and he said, 'Well, you would have to sign for me, and it would have to be recorded,' and after that then he charged, I think it was seven dollars. * * * I don't recall his name.'

The record also shows that defendant, at the instance of his counsel, took the witness stand to identify the deed delivered to him by Alexander. On cross-examination, counsel for plaintiff offered to prove that defendant paid no money to Alexander for the deed. That offer was denied.

In this court, plaintiff elaborates upon her contention as to proper construction to be placed upon the deed from Brauer to Alexander and Magnolia as follows: (1) that the deed from the straw man, Brauer, to Alexander and Magnolia 'constituted a contract by which Alexander Johnson and Magnolia McClendon each acquired an estate for...