Nordquist v. Nordquist

• Decision Date: 02 March 1929
• Docket Number: 27242
• Citation: 14 S.W.2d 583,321 Mo. 1244
• Parties: Lillian Nordquist, Appellant, v. Vernon Nordquist, Virginia Nordquist, Olga Reeves and Robert N. Reeves
• Court: Missouri Supreme Court

14 S.W.2d 583

321 Mo. 1244

Lillian Nordquist, Appellant, v. Vernon Nordquist, Virginia Nordquist, Olga Reeves and Robert N. Reeves

No. 27242

Supreme Court of Missouri

March 2, 1929

Appeal from Jackson Circuit Court; Hon. Samuel A. Dew Judge.

Affirmed.

S L. Trusty and Phineas Rosenberg for appellants.

(1) The court erred in permitting Laura Jones, Vernie Nordquist, Mrs Vernie Nordquist, Olga Reeves, R. H. Reeves and A. R. Lyons to testify as to statements made by and acts of Andrew Nordquist deceased. Sitton v. Shipp, 65 Mo. 299; Weller v. Collier (Mo.), 199 S.W. 974; Edmonds v. Scharff, 279 Mo. 78; Chapman v. Daugherty, 87 Mo. 617. (2) The court erred in striking out statement of plaintiff that deceased told her there was another way. Edmonds v. Scharff, 279 Mo. 78; Weller v. Collier (Mo.), 199 S.W. 974. (3) The court erred in permitting Mrs. Vernie Nordquist to repeat what deceased had said and done. Weller v. Collier (Mo.), 199 S.W. 974; Cases under Point 1. (4) The court erred in permitting defendant to introduce the assignment on the insurance policies. Weller v. Collier (Mo.), 199 S.W. 974; Sitton v. Shipp, 65 Mo. 306. (5) The court erred in rejecting plaintiff's declaration of law numbered B. Bartlett v. White (Mo.), 272 S.W. 944. (6) The court erred in overruling plaintiff's motion for new trial and motion in arrest of judgment. MacCallum v. Wilson (Mo. App.), 221 S.W. 158. (7) The court erred in dismissing plaintiff's bill in equity and in entering judgment for defendant. Bartlett v. White (Mo.), 272 S.W. 944.

Lyon and Lyon for respondents.

(1) The court did not err in permitting Laura Jones, Vernie Nordquist, Mrs. Vernie Nordquist, Olga Reeves, R. H. Reeves and A. R. Lyon to testify to statements made by and actions of Andrew Nordquist deceased. Elsea v. Smith, 273 Mo. 396; Pfotenhauer v. Ridgway, 271 S.W. 51; Larue v. Bloch, 255 S.W. 321; Harlan v. Moore, 132 Mo. 483; Rinkel v. Lubke, 246 Mo. 377; Griffin v. Nicholas, 224 Mo. 275; Hiemenz v. Harper, 275 Mo. 380; Hanson v. Neal, 215 Mo. 271; Jones v. Thomas, 218 Mo. 544. (2) The court did not err in striking out the statement of what deceased, Andrew Nordquist, told appellant about the papers which he destroyed. Pfotenhauer v. Ridgway, 271 S.W. 50; Williams v. Peterson, 271 S.W. 1023; Broaddus v. Broaddus, 221 S.W. 804; Larue v. Bloch, 255 S.W. 322; Harlan v. Moore, 132 Mo. 483; Rinkel v. Lubke, 246 Mo. 377; Hanson v. Neal, 215 Mo. 271; Jones v. Thomas, 218 Mo. 544. (3) The court did not err in permitting defendants to introduce the assignments on the insurance policies. Pfotenhauer v. Ridgway, 271 S.W. 51; Larue v. Bloch, 255 S.W. 322; Harlan v. Moore, 132 Mo. 489; Rinkel v. Lubke, 246 Mo. 377; Griffin v. Nicholas, 224 Mo. 275; Hanson v. Neal, 215 Mo. 271; Jones v. Thomas, 218 Mo. 544. (4) The court did not err in entering judgment for defendants, rejecting plaintiff's declaration of law marked B, and overruling plaintiff's motion for new trial and motion in arrest of judgment. Pfotenhauer v. Ridgway, 271 S.W. 51; Williams v. Petersen, 271 S.W. 1023; Broaddus v. Broaddus, 221 S.W. 804; Fontaine v. Savings Inst., 57 Mo. 552; Miller v. Miller, 148 Mo. 113; Kent v. Crockett, 274 S.W. 460; Lusse v. Lusse, 140 Mo.App. 497; Byrd v. Vanderburgh, 168 Mo.App. 112; Baker v. Payne, 198 S.W. 75; Brann v. Life Ins. Co., 226 S.W. 49; Troll v. Spencer, 238 Mo. 81.

Henwood, C. Davis, C., concurs.

OPINION

HENWOOD

This is a suit in equity filed by appellant in the Circuit Court of Jackson County. Her petition is in two counts: first, to cancel a deed to certain real estate; and second, for partition of said real estate. The chancellor found against her on both counts, and rendered judgment for respondents. She was granted an appeal to the Kansas City Court of Appeals, and, upon a hearing in that court, the case was transferred to this court, because the title to real estate is involved.

Respondents filed a motion to dismiss the appeal, in the Court of Appeals, on the ground that appellant's original abstract of the record was insufficient, and, on the same day, filed an additional abstract of the record, in which they corrected the errors and supplied the omissions complained of. By filing such additional abstract, respondents waived their right to move a dismissal of the appeal. [Wimbush v. Danford (Mo.), 238 S.W. 460.] Moreover, appellant met the objections to her original abstract by filing an additional abstract. The motion to dismiss the appeal is accordingly overruled.

Plaintiff alleges, in the first count of her petition, that she and Andrew Nordquist were lawfully married on November 17, 1921, and that, at the time and prior to their marriage, Andrew Nordquist was seized of the following real estate, situate in Jackson County, Missouri:

"All of Lot Number Sixty-one (61) Wuaneta Park, an addition in Kansas City, Jackson County, Missouri, as the same is marked and designated on the recorded plat of said addition; also all of Lot Twenty-seven (27), in Block Twelve (12), in Winter Park, an addition in Kansas City, Missouri; also all of Lots One Hundred Fifty-nine (159) and One Hundred Sixty (160), of Resurvey of Kemper Heights, an addition in Kansas City, Missouri;

That, for the purpose of defrauding her out of her dower rights therein, Andrew Nordquist and the defendant Vernon Nordquist, on December 10, 1921, caused to be recorded, in Jackson County, a warranty deed purporting to convey said real estate from Andrew Nordquist to Vernon Nordquist and purporting to have been signed and acknowledged by Andrew Nordquist on November 15, 1921; that, in truth and in fact, said deed was not signed and acknowledged on November 15, 1921, and not until after her marriage to Andrew Nordquist and after her inchoate dower right had attached; that said deed was without consideration, is fraudulent and void as to her, and casts a cloud upon her dower interest in said real estate; that Andrew Nordquist died intestate November 6, 1922, and, as his widow, she is entitled to dower in said real estate; that she and the defendants Vernon Nordquist and Olga Reeves, children of Andrew Nordquist by a former wife, are his sole heirs at law; and that the defendant Virginia Nordquist, wife of Vernon Nordquist, and the defendant Robert H. Reeves, husband of Olga Reeves, are interested in said real estate only by virtue of such marital relationships. Wherefore, she asks that said deed be adjudged null and void as to her, and thereby remove the cloud upon her dower interest in said real estate.

And, in the second count, she asks that said real estate be partitioned, by the sale thereof, and that the net proceeds of the sale be paid to her and the defendants in accordance with their respective interests.

Defendants, in their joint answer to each count of the petition, deny every allegation therein contained, and, further answering, state that the defendant Vernon Nordquist is sole and absolute owner of said real estate.

Plaintiff's reply is a general denial of the affirmative allegations of the answer.

The deed in question (defendants' Exhibit C), together with all stamps, marks and indorsements thereon, appears in the following form:

"Missouri Warranty Deed.

"This Indenture, made on the 15th day of November, A. D. One Thousand Nine Hundred and Twenty-one by and between Andrew Nordquist, a single man, of the County of Jackson, State of Missouri, party of the first part, and Vernie Nordquist, of the County of Clay, State of Missouri, party of the second part.

"Witnesseth: That the said party of the first part, in consideration of the sum of one dollar and exchange of properties to him paid by said party of the second part (the receipt of which is hereby acknowledged), do by these presents, Grant, Bargain and Sell, Convey and Confirm unto the said party of the second part his heirs and assigns, the following described lots, tracts and parcels of land lying, being and situate in the County of Jackson and State of Missouri, to-wit:

"All of Lot Number Sixty-one (61) Wauneta Park, an Addition in Kansas City, Jackson County, Missouri, as the same is marked and designated on the recorded plat of said Addition, also all of Lot Twenty-seven (27) in Block twelve (12) in Winter Park, an Addition in Kansas City, Missouri; also all of Lots 159 and 160 of Resurvey of Kemper Heights, an Addition in Kansas City, Missouri.

"Said Lot 61 is conveyed subject to a deed of trust now thereon given to secure a principal note of $ 4000 therein described.

"To have and to hold the premises aforesaid with all and singular, the rights, privileges and appurtenances and immunities thereto belonging or in any wise appertaining unto the said party of the second part and unto his heirs and assigns forever; the said Andrew Nordquist hereby covenanting that he is lawfully seized of an indefeasible estate in fee of the premises herein conveyed; that he has good right to convey the same; that the said premises are free and clear from any incumbrance done or suffered by him or those under whom he claims; and that he will warrant and defend the title to the said premises unto the said party of the second part and unto his heirs and assigns forever, against the lawful claims and demands of all persons whomsoever, subject to the above described encumbrance.

"In witness whereof, the said partys of the first part have hereunto set his hand and seal the day and year above written.

(Signed) Andrew Nordquist. (Seal)

"(On the face of said deed are five-one dollar cancelled revenue stamps, bearing the following cancellation: '11-15-21 A. N.')

"(On the back of said deed appears the following:)

"State of Missouri, County of Jackson, ss:

"On this 15th day of November, 1921, before me, the undersigned a...