McNear v. Williamson

• Decision Date: 17 December 1901
• Citation: 166 Mo. 358,66 S.W. 160
• Court: Missouri Supreme Court
• Parties: McNEAR v. WILLIAMSON et al.<SMALL><SUP>1</SUP></SMALL>

66 S.W. 160

166 Mo. 358.

McNEAR v. WILLIAMSON et al.¹

Supreme Court of Missouri, Division No. 1.

December 17, 1901.

EJECTMENT — EQUITABLE AND LEGAL DEFENSES — TRIAL — ADMISSIONS — DEEDS — DELIVERY — INFANTS — APPEAL — CONFLICTING EVIDENCE — PARTIES.

1. In ejectment by one claiming by deed from defendant, defendant alleged as an equitable defense that, being indebted to a certain bank for $3,000, plaintiff, her son-in-law, had fraudulently represented to her that the indebtedness amounted to $5,000, and that the bank was about to attach the land and force a sale, whereon she executed the alleged deed to plaintiff and her son for an inadequate consideration. The evidence did not show why she should have relied on plaintiff's statements, but showed she was in as good position to know the facts as was plaintiff. Held that, the burden of proof being on her, she was not entitled, under the evidence, to equitable relief.

2. Defendant, having also alleged that the deed was never delivered, was not entitled to equitable relief on the pleadings, nondelivery constituting a defense at law

3. The equitable defense was an admission of delivery only so far as the trial of the equity issues were concerned, and when defendant failed to make out the equitable defense she was entitled to have the other issues tried at law.

4. The delivery of a deed to a minor is not ineffectual by reason of minority alone.

5. Plaintiff in ejectment claimed under a deed from the defendant, and the defense was that its execution was obtained by fraud, and also that it was never delivered. There was evidence that, defendant being indebted to a bank for $3,000, plaintiff, her son-in-law, represented to her that the debt amounted to $5,-000, and that the bank was about to attach the land and force a sale, whereon she executed a deed to him and to her minor son for a consideration of $900, though the annual rental value was over $500. The deed was handed to her son, who took it to defendant's home, and put it in her possession. Nine days later she paid plaintiff $650, which she claimed was in part a return of the consideration, but which he claimed was paid to him as a gift. There was a finding for plaintiff, but it did not appear from the record whether it was based on failure of the equitable defense of fraud or on the question of delivery. Held that, though the court would not ordinarily set aside a finding on such conflicting evidence, though it considered the finding against the weight of evidence, yet, it not appearing that the issue of delivery had been clearly presented, the finding should be set aside.

6. Where plaintiff in ejectment claimed under a deed alleged to have been executed to himself and to another, under which he claimed an undivided half interest, the other grantee, having refused to become a party plaintiff, was not a necessary party defendant under Rev. St. 1899, § 544, providing that parties united in interest with the plaintiff and refusing to join in the suit may be made defendants, since plaintiff's right of recovery was not dependent on the other grantee.

Appeal from circuit court, Chariton county; W. W. Rucker, Judge.

Ejectment by Robert H. McNear against Mary E. Williamson and others. From a judgment for plaintiff, defendants appeal. Reversed.

This is an action in ejectment for land in Boone county. The real parties in interest are the plaintiff, McNear, and the defendant Mary E. Williamson. The two other defendants are the husband of Mrs. Williamson and her son, Arthur Jennings, who, at the commencement of this suit, was a minor, and who, the petition avers, is equally interested with the plaintiff in the subject sued for, but refuses to become plaintiff, and is therefore made defendant, under section 1994, Rev. St. 1889; section 544, Rev. St. 1899. Mrs. Williamson was the owner of a life estate in the land, the remainder in fee vesting in her two children, — a daughter, who is the wife of the plaintiff, and the son above mentioned. The case turns on the question as to the validity of a document alleged to be a deed executed by Mrs. Williamson February 14, 1898, purporting to convey her life estate to her son and the plaintiff, her son-in-law. In her answer Mrs. Williamson says that the deed was never delivered, and for an equitable defense she says that the plaintiff and his father falsely and fraudulently represented to her that she was indebted to the Centralia Bank in the sum of $5,000, when in fact she did not owe that bank more than $3,000, and that the bank was going to institute a suit by attachment against her, and that by that means they induced her to believe that, in order to save her property from attachment and forced sale, she ought to convey it to the plaintiff and her son; and that, being at the time in bad health and nervous, and confiding in the representations so made, she yielded to the suggestion and signed and acknowledged the deed, but never delivered it; that she afterwards discovered that the representations were false, and she made a satisfactory adjustment of her affairs with the bank, and still retains the deed in her possession; that there was no consideration for the deed, the son, Arthur Jennings, makes no claim under it. The evidence is conflicting on some points presently noted, but the following facts appear without dispute: In December, 1897, the defendant who is now Mrs. Williamson was a widow, Mrs. Jennings, and owned a life estate in the land in suit, the fee in remainder being owned by her daughter and son; the son, Arthur Jennings, being then a minor, and a student at the university at Columbia. On December 28, 1897, the plaintiff, McNear, married the daughter of Mrs. Jennings, and made his home in her house. In February, 1898, Mrs. Jennings was indebted to the Centralia Bank in a considerable sum, the exact amount of which she seemed not to know, but apprehended it might be as much as $5,000, and also apprehended that the bank would press a settlement, which would be disastrous to her. In that state of mind, on February 14, 1898, she signed and acknowledged the document in controversy, which purports to be a quitclaim deed of her life estate to her son, Arthur, and her son-in-law, McNear, for the consideration of $900. This deed (we will call it a deed for convenience) was drawn in a lawyer's office in Centralia, and while it was being written the plaintiff. McNear, and his father, and Arthur Jennings went to the bank, and executed their joint note for $900, for which the bank gave them a note for $256, which it held, on which Mrs. Jennings was liable, and $644 in money. They then returned to the lawyer's office, and gave the note and money to Mrs. Jennings, and she signed and acknowledged the deed, and handed it to her son, Arthur, who took it to her home, and put it in her bureau drawer, and she has had it in her possession ever since. As soon as the transaction just mentioned was concluded. Mrs. Jennings went from the lawyer's office to the Centralia Bank, and then discovered that she only owned the bank about $3,000, and she then made a satisfactory adjustment of the indebtedness with the cashier. Nine days afterwards — February 23d — she returned to the plaintiff the $644 that had been given to her at the lawyer's office, and he at once took it to the bank, and paid it on the $900 note above mentioned, and Mrs. Jennings shortly afterwards paid the bank the balance of that note. On March 8, 1898, Mrs. Jennings married her present husband, Williamson, and shortly after that event the plaintiff and his wife moved away from her house. The property sued for consists of a farm in Boone county, and a house in Centralia. The rental value of the farm is $500 a year and of the house is $7 per month. The points on which the testimony is conflicting relate chiefly to the question of delivery of the deed and to the character of the act of returning the $644 to the plaintiff; that is, whether it was handed to him to pay on the note in bank, or was a mere gift to him of so much money. The testimony on the part of the plaintiff tended to show that when she handed the deed to her son, Arthur, she told him to take it and put it on record. That on the part of the defendant tended to show, when she handed the deed to him, she told him to take it home for her, as she had no pocket to put it in, and was going to the dress-maker's to try on a dress before going home. Arthur himself testified that he was unwilling to have the deed made to the plaintiff and himself; that he told his mother, if she was going to make a deed, it should be made to his sister and himself. As to the...