McReynolds v. Grubb

• Decision Date: 06 June 1899
• Citation: 150 Mo. 352,51 S.W. 822
• Parties: McREYNOLDS et al. v. GRUBB.
• Court: Missouri Supreme Court

51 S.W. 822

150 Mo. 352

McREYNOLDS et al. v. GRUBB.

Supreme Court of Missouri, Division No. 2.

June 6, 1899.

DEED — EXECUTION — DELIVERY — PLEADING — DEFECTIVE CONVEYANCE BY WIFE — REFORMATION.

1. A petition averring that grantors made a warranty deed which was recorded, and that thereafter the grantee conveyed a part of the land therein described, sufficiently avers a delivery of the deed.

2. From the execution and record of a deed delivery is presumed.

3. Where land intended to be conveyed by a husband and wife was not her separate property, and she could only convey her interest in the manner prescribed by statute, a deed defectively executed by her, or which does not describe the land, cannot be corrected by a proceedings in equity, though she received and retains the consideration therefor; she having been incompetent to contract in relation to a conveyance of the land when the deed was executed.

Appeal from circuit court, Jasper county; E. C. Crow, Judge.

Suit by America McReynolds and others against Rhoda C. Grubb. Judgment and decree in favor of plaintiffs, and defendant appeals. Reversed.

Harrison & Harrison, for appellant. McReynolds & Halliburton, for respondents.

BURGESS, J.

This suit was instituted in the circuit court of Jasper county by plaintiffs against the defendant for the purpose of having corrected a deed executed by defendant and her husband, Joel Grubb, in his lifetime, to Jacob Grubb, by which they attempted to convey to him a certain tract of land in said county, to wit, 26½ acres, a part of the N. E. ¼ of the S. E. ¼ of section 9, in township 27, and the N. W. ¼ of the S. E. ¼ of section 17, in township 27 of range 13, except three-fourths of an acre in the southwest corner; but by the mistake of the scrivener, as alleged, who wrote the deed, the land in section 17 was described as the N. E. ¼ of the S. E. ¼, when it should have been described as the N. W. ¼ of the S. E. ¼ of said section 17, township and range, except three-fourths of an acre in the southwest corner of said 40-acre tract. The deed was executed on the 9th day of March, 1877. Joel Grubb died in October, 1889. Plaintiffs claim title under Jacob Grubb. The trial resulted in a judgment and decree in favor of plaintiffs, correcting the mistake in the deed. After unsuccessful motions for new trial and in arrest, defendant appeals. Joel Grubb was married three times. By his first wife he had five children, viz. America McReynolds, Sarah A. Montague, John Grubb, and V. H. Grubb, and one by his last wife, the defendant, all of whom were living in March, 1877. At that time he was the owner in fee of the N. W. ¼ of the S. W. ¼ of section 10, township 27, range 31, except 2½ acres thereof. This was the homestead. He also owned 26½ acres, a part of the N. W. ¼ of the S. E. ¼ of section 9, in township 27 of range 31. Joel Grubb and the defendant were the owners of, and had the legal title to, the N. W. ¼ of the S. E. ¼ of section 17, township 27 of range 31, except three-fourths of an acre in the southwest corner thereof, as tenants in common; Joel Grubb owning three-fourths thereof, and the defendant one-fourth. In March, 1877, Joel Grubb made an arrangement with defendant by which it was agreed that they would deed all the land he owned and the land he and she owned to Jacob Grubb, and that said Jacob Grubb should immediately deed to the defendant for her and her child the home place, to wit: N. W. ¼ of the S. W. ¼ of said section 10, and it was further agreed that Jacob Grubb was to hold the title to the N. W. ¼ of the S. E. ¼ of section 17, and 26 acres in section 9, township 27, range 31, until the death of said Joel Grubb, when these tracts were to be divided between the five children of Joel Grubb's first wife; and, for the purpose of binding Jacob Grubb to make said conveyances, Jacob Grubb executed his note to Joel Grubb for $500, with the agreement and understanding that with the making of said conveyances to his brothers and sisters said note was to be given up and canceled, the only consideration therefor being to bind Jacob Grubb to make the conveyances. In the deed from Joel Grubb and his wife to Jacob Grubb, made in pursuance of this arrangement, there was a mistake in the description of the land in this: that where they attempted to convey the N. W. ¼ of the S. E. ¼ of section 17, except three-fourths of an acre in the southwest corner of said quarter, it was described as the N. E. ¼ of the S. E. ¼, — a 40 to which Joel and Rhoda C. Grubb never at any time had any title. Rhoda C. Grubb acquired her interest in the 40 acres in section 17 as an heir at law of her father, Matthew Payne, and Joel Grubb acquired his interest therein by the purchase of the interest of other heirs in said estate, and in partition of said estate this land was set off to them with other land, which made them respectively own, the defendant one-fourth, and Joel Grubb three-fourths, of said 80. After the death of Joel Grubb, in October, 1889, the five children of the first wife of Joel Grubb went to his residence, where the defendant lived, and there talked over the property of the estate and the manner of dividing the same. At that time John Grubb had a chattel mortgage on all the personal property of Joel Grubb. There was also a note for $100, signed by the defendant in favor of Joel Grubb. These five heirs and the defendant at that time mutually agreed that John Grubb should deliver up and cancel his chattel mortgage, and the defendant should have all the personal property belonging to the estate of Joel Grubb, and retain the home place, 37½ acres, for herself and minor child; that Jacob Grubb's note for $500 should be delivered to him and defendant, and Rhoda C. Grubb's note for $100 should be delivered to her, all of which was done at that time; that the N. W. ¼ of the S. E. ¼ of section 17, township 27, range 31, should be deeded to America McReynolds, Sarah A. Montague, and V. H. Grubb; that 26 acres in section 9 should go to John Grubb and Jacob Grubb; and immediately thereafter, on October 21, 1889, Jacob Grubb made a deed to America McReynolds and Sarah A. Montague and V. H. Grubb, conveying the N. W. ¼ of the S. E. ¼ of section 17, township 27, range 31. On the same day America McReynolds and Sarah A. Montague bought of V. H. Grubb his interest in said 40, and received a deed therefor, and afterwards, by agreement, divided said land between themselves, each taking 20 acres, and made deeds March 14, 1891, in accordance therewith. All these deeds conveyed said land by the correct description. America McReynolds and Sarah A. Montague immediately took possession of their respective parts of this 40 acres, and commenced improving the same, and put thereon lasting and valuable improvements at a considerable expense, with the full knowledge of the defendant, Rhoda C. Grubb. Matters ran along in that shape until the fall or winter of 1895, when the defendant commenced making some claims to this 40 acres of land, and this suit was commenced to correct said deed. At the close of the evidence, the court, at the request of plaintiffs, found the facts to be as follows: "(1) That defendant, Rhoda Grubb, owned an interest in the tract of land in controversy as her separate property; (2) that it was in the intention of Joel Grubb and Rhoda Grubb to convey the N. W. ¼ of the S. E. ¼, except three-fourths of an acre in the southwest corner, instead of the N. E. ¼ of the S. E. ¼, except as described in the deed; (3) that defendant, Rhoda Grubb, after the death of Joel Grubb, ratified the deed, as intended to have been made by the said Joel Grubb, by her acts and transactions with the children of Joel Grubb by his first wife, and is bound by such ratification." At the request of defendant, the court found the facts to be as follows: "(1) That, at the time the deed in controversy was made, Joel Grubb and Rhoda C. Grubb (this defendant) were husband and wife; that Joel Grubb died in October, 1889." And refused to find: "(2) That Joel Grubb and Rhoda C. Grubb...