McKinney v. Hawkins

• Decision Date: 10 October 1919
• Docket Number: No. 20292.,20292.
• Citation: 215 S.W. 250
• Parties: McKINNEY v. HAWKINS et al.
• Court: Missouri Supreme Court

215 S.W. 250

McKINNEY v. HAWKINS et al.

No. 20292.

Supreme Court of Missouri, Division No. 1.

October 10, 1919.

Appeal from Circuit Court, Douglas County; John T. Moore, Judge.

Action by J. W. McKinney against Nellie Hawkins and others. Judgment for defendants, and the plaintiff appeals. Affirmed.

A. C. Kice, of Ava, for appellant.

Geo. B. Wilson, of Ava, for respondents.

RAGLAND, C.

This is an appeal from the circuit court for Douglas county. It was submitted on the abstract, statement, and brief of appellant; the respondent making no appearance in this court.

The petition is in two counts. The first is in the nature of a bill in equity to set aside a deed, and the second is in ejectment. It is alleged in substance in the first count that on the _____ day of _____, 1908, the plaintiff, being the owner of the northeast quarter of the southeast quarter of section 34, township 26, of range 18, in Douglas county, Mo., and intending to make an advancement to his daughter, the defendant Nellie Hawkins, by conveying said land to her for and during her natural life with fee to the heirs of her body, did make, sign, and acknowledge a deed, which through the mistake of the scrivener purported to convey the fee to said Nellie; that said deed was never delivered to said defendant nor to any one for her, but that, during the absence of plaintiff from his home, said defendant without his knowledge or consent took the deed from a trunk in which it was kept and carried it away; and that she refused and still refuses to return it to him. The prayer is that said deed be set aside and the defendants divested of any right, title, and interest in said land, and that plaintiff be reinvested with the title. In the second count the ouster is laid as of the _____ day of _____, 1908. The defendants did not demur to either count of the petition, although it is apparent that the first count is vulnerable to such attack, but answered over, denying generally the allegations of both counts, but alleging that they were the owners of the land and were, and for 16 years had been, in the adverse possession thereof. A jury was waived, and all the issues were tried to the court.

The evidence consists of the testimony of four witnesses, the plaintiff and his wife, on the part of the plaintiff, and the defendant Nellie Hawkins, and the justice of the peace who prepared the deed in controversy, on the part of the defendants. As reproduced in the abstract it is as follows:

"The plaintiff to sustain the issues on his part offered evidence as follows: That in the year 1902 the plaintiff was the owner of the following described land situated in Douglas county, Mo., to wit: The northeast quarter of the southeast quarter, section thirty-four, township twenty-six, range eighteen.

"The plaintiff J. W. McKinney testifying in his own behalf (the testimony not being taken down by a stenographer) testified as follows: That in said year, 1902, he leased ten acres of said forty-acre tract to Gus Hawkins, the husband of Nellie Hawkins, Nellie Hawkins being his daughter. The plaintiff retained thirty acres of the land, a part of which he put in cultivation and the remainder in pasture. That in 1905 after Gus Hawkins had had possession of the said ten acres for about three years with a view of giving said forty-acre tract to Nellie Hawkins, his daughter, one of the defendants herein, he and his wife went before David Walker and told him (he being a justice of the peace) that they wanted to make a deed to Nellie Hawkins and children, to her during her life and to her children at her death. That the said David Walker had a form for warranty deed, and he wrote out a general warranty deed to said land which conveyed a title in fee simple to Nellie Hawkins, which was not plaintiff's intention. That on returning home from the office of the J. P. they passed by the place where Nellie Hawkins lives, and plaintiff's wife, who had the deed in her care, handed the deed to Nellie Hawkins, one of the defendants, and they went on home. That a short time thereafter the plaintiff asked his wife for the deed, and she informed him that she had handed the deed to Nellie Hawkins to look at. He told his wife to go and get the deed, as he wanted to take it to the county seat and have the same recorded if it was all right. That his wife went and got the deed from Nellie Hawkins and delivered it to him. That he took the deed to Ava, the county seat of Douglas county, to have the same recorded and handed the same to the recorder of deeds, John A. Spurlock, and told him the kind of conveyance he wanted to make. John A. Spurlock informed him that the deed was a general warranty deed and that Nellie Hawkins, one of the defendants, could convey the land at once and give good title to the purchaser. When plaintiff found that the deed was not as he wanted it, he did not have it recorded, but took it home and handed it to his wife and told her to put it away; that he would make such a title to Nellie Hawkins and her children as he originally intended. That he was afraid to give them a general warranty deed for fear the husband of Nellie Hawkins would persuade her to sell the land, which would leave them nothing. That in the year 1914 plaintiff and his wife went on some business to Ash Grove in Green county, Mo., and left Nellie Hawkins, one of the defendants in charge of his premises and his stock, including some cows and hogs and the household and kitchen furniture. That while they were gone Nellie Hawkins surreptitiously extracted said deed from the trunk at plaintiff's residence where plaintiff kept all his papers, and took the same home With her. That afterwards in searching over his papers plaintiff found that the deed was missing and made inquiry and found that Nellie Hawkins had taken it out of plaintiff's trunk. That plaintiff demanded said deed back front Nellie Hawkins, but she refused to give it back to him, but said she would give him $50 if he Would let her keep it. Some time afterwards plaintiff informed defendant Nellie Hawkins that I if she did not return the deed he would bring Suit to have the same set aside. That on the 18th day of March, 1916, when defendant Nellie Hawkins learned that plaintiff was about to !bring suit to have the deed set aside, she had I the same recorded in the recorder's office at Douglas county, Mo. That from 1902 up to 1914 plaintiff retained the possession of thirty acres of said forty-acre tract, cultivated a part and pastured a part of same and paid taxes on same ever since 1902 and exercised dominion over said land.

"Mrs. McKinney, the wife of plaintiff, testified to about the same facts as plaintiff testified to, with this addition: That while they were returning from David Walker's they passed the defendant's house, she stopped, and her husband walked on. Without any authority from her husband and without his knowledge, she handed the deed in question to her daughter, Nellie, and told her to look over the same and see if it was all right. This closed the testimony on part of the plaintiff.

"The defendants to sustain the issues on their part offered evidence about as follows:

"That when the plaintiff and his wife passed their house that plaintiff's wife banded her the deed. That plaintiff was present and saw her. Mrs. McKinney handed Nellie the deed and said `Here is your deed.' That when the plaintiff and her mother went to Ash Grove they placed all the premises, furniture and stock, in her care, and that she thought that she had a right to take the deed as everything was in her possession together with the trunk in which said deed was deposited.

"David Walker, the justice of the peace, testified that plaintiff and his wife came to his house and asked that a deed be written out from himself and wife to one of the defendants Nellie Hawkins. That he wrote same, read the same over and asked them if it was all right, and plaintiff said it was all right and he and his...