Otten v. Otten

• Decision Date: 25 October 1941
• Docket Number: 37229
• Citation: 156 S.W.2d 587,348 Mo. 674
• Parties: George Otten, Appellant, v. Ernest Otten and Dorothy Otten, his Wife
• Court: Missouri Supreme Court

156 S.W.2d 587

348 Mo. 674

George Otten, Appellant, v. Ernest Otten and Dorothy Otten, his Wife

No. 37229

Supreme Court of Missouri

October 25, 1941

Appeal from Camden Circuit Court; Hon. C. H. Skinker Judge.

Affirmed.

Morgan M. Moulder and Bradshaw & Fields for appellant.

(1) Unexplained material alterations void deed as to party claiming under alterations. (a) Any change in an instrument which changes the rights and obligations of the parties is a material alteration. Bruegge v. State Bank of Wellston, 74 S.W.2d 835; Lampe v. Franklin American Trust Co., 96 S.W.2d 710, 339 Mo. 361; 2 C. J. 1193 sec. 34; 1 R. C. L. 253. (b) Any material change or alteration of a deed will vitiate it as against non-consenting parties and will confer no right or title upon a grantee whose name is interpolated and added in a deed after its execution; and this rule of law applies even though such alteration is made in good faith and made to make it conform to the real agreement of the parties. 2 C. J. 1193; Church v. Combs, 58 S.W.2d 467; Ostrander v Messmer, 223 S.W. 438. (c) Where an instrument appears on its face to be in different handwriting, written at different times, and in different ink, the law presumes nothing as to its integrity, and the party seeking to benefit from the alteration of the instrument has the burden of proving that the alterations were made at the time of or anterior to the execution of the instrument and with the consent of all parties to the instrument. Mechanics American Natl. Bank v. Helmbacher, 201 S.W. 382, 199 Mo.App. 173; Bente v. Finley, 83 S.W.2d 155; Parker v. Staley, 55 S.W.2d 332; Kircher v. Dunnington, 29 S.W.2d 138; Hardt v. Phillips Pipe Line Co., 85 S.W.2d 202. (d) Although the original deed unquestionably shows on its face that it was altered with a different pen and different ink and in a different handwriting, and although the respondents relied upon such alterations to establish any right they might claim to the property, yet they failed completely to explain in any way these alterations in the deed, notwithstanding the fact that the grantors denied that the instrument was signed by them in its altered form. Consequently, the decree should be for the appellant. Collision v. Norman, 191 S.W. 60; Carson v. Lumber Co., 192 S.W. 1018; Lampe v. Franklin American Trust Co., 96 S.W.2d 710; Bente v. Finley, 83 S.W.2d 155. (2) Being an equity case, this proceeding is triable de novo and this court will not be bound to accept the findings of the chancellor, where, as here, the decree of the lower court is against the evidence and against the weight of the evidence. Plemmons v. Pemberton, 139 S.W.2d 910; Gorman v. Mercantile-Commerce Bank & Trust Co., 137 S.W.2d 571; Peikert v. Repple, 114 S.W.2d 999. (3) When one claims fee simple title to land and makes improvements thereon in good faith he is entitled to recover compensation for the improvements under a prayer for general equitable relief. Rains v. Moulder, 90 S.W.2d 81.

W. M. Raines for respondents.

(1) The second count of the petition is an action to determine title and is an action at law tried before the court sitting as a jury, and since there was substantial evidence to support the judgment of the court, the finding and judgment of the trial court is binding on this court and there is nothing here for review. Sec. 1634, R. S. 1939; Curry v. Crull, 116 S.W.2d 125; Dumm v. Cole County, 315 Mo. 568, 287 S.W.2d 485; In re Lankford's Estate, 272 Mo. 1, 197 S.W. 147; Case v. Sipes, 280 Mo. 110, 217 S.W. 306; Wiley v. Harlow, 274 Mo. 170, 202 S.W. 533; Cullen v. Atchison County, 268 S.W. 98. (2) Plaintiff has wholly failed to produce any evidence that alterations were made in the deed after execution of the instrument, and the decree of the trial court must be affirmed. 2 C. J. 1172; Elgea v. Dunn, 297 Mo. 690, 249 S.W. 933; Matthews v. Coulter, 9 Mo. 705; Holton v. Kemp, 81 Mo. 665; Barnett v. McCluey, 78 Mo. 687; Grimes v. Whiteside, 65 Mo.App. 3; Little v. Herndon, 10 Wall. 26, 19 L.Ed. 568; Home Trust Co. v. Josephenson, 95 S.W.2d 1148, 339 Mo. 170, 105 A. L. R. 1063; Parker v. Staley, 55 S.W.2d 332; Globe Automatic Sprinkler Co. v. Laclede Packing Co., 93 S.W.2d 1053; Whetsel v. Forgey, 323 Mo. 681, 20 S.W.2d 523. (3) Under the facts in evidence the law presumes that any corrections made in the deed were made before the time of the execution of the instrument. See authorities under Point (2); Paramore v. Lindsey, 63 Mo. 63; Roettger v. Rothernel, 251 S.W. 427; City of Carterville v. Luscombe, 165 Mo.App. 518, 148 S.W. 966. (4) Even conceding that this is a suit in equity, yet the issues presented involve the allegation that a deed has been altered, which amounts to forgery. In such a case this court yields to the findings of fact on such forgery and alteration, on the part of the trial court who had the instrument before him and who heard the witnesses who have conflicting testimony. Futhey v. Potts, 204 S.W. 180; Wintz v. Johannes, 56 S.W.2d 109, 331 Mo. 536; Russell v. Franks, 120 S.W.2d 37; Hale v. Weinstein, 102 S.W.2d 650; Franklin v. Moss, 101 S.W.2d 711; Fendler v. Roy, 58 S.W.2d 459, 331 Mo. 1083. (5) The plaintiff is not entitled to recover the value of any improvements under the facts in evidence. Sec. 1548, R. S. 1939; Brown v. Baldwin, 121 Mo. 106, 25 S.W. 858; Lee v. Bowman, 55 Mo. 400; Callaway Bank v. Ellis, 238 S.W. 844. (6) Plaintiff is barred by laches to maintain this action under the evidence. Lustenberger v. Hutchinson, 119 S.W.2d 921; Snow v. Funk, 41 S.W.2d 2; 19 Am. Jur., sec. 492, p. 340; 19 Am. Jur., sec. 498, p. 343; Carlin v. Bacon, 16 S.W.2d 46, 322 Mo. 435, 69 A. L. R. 1; Collins v. Lindsey, 25 S.W.2d 84; Jones v. McGonigle, 37 S.W.2d 892, 327 Mo. 457, 74 A. L. R. 550; Hunter v. Hunter, 39 S.W.2d 359, 327 Mo. 817; 19 Am. Jur., sec. 480, p. 333.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

George Otten instituted this action against Ernest Otten and Dorothy Otten, husband and wife, his son and daughter-in-law, to correct a certain warranty deed conveying approximately six acres of unimproved land, suitable for a tourist cabin site, on the Lake of the Ozarks in Camden County, Missouri, by striking therefrom provisions passing an undivided half interest therein to said Ernest Otten and to quiet the title to said real estate in George Otten. The decree nisi adjudged that George Otten and Ernest Otten each had an undivided one-half interest in the real estate. Plaintiff appealed.

The case involves alterations in a general warranty deed of William D. Jeffries and Valonia E. Jeffries, dated May 1 1931, and acknowledged May 8, 1931, before Barney Reed, the draftsman, a lawyer and a notary public. The original instrument was filed here. It is on a printed blank form with the blanks filled in in longhand. As originally drafted, it must have passed title to George Otten as party of the second part, because: In apparently different ink, unless immediate blotting affected the color of the ink, and apparently by a different pen, the words "and Ernest Otten" are added immediately following "George Otten" and the letters "ies" are written over the letter "y" in the word "party" of the phrase "party of the second part" in the clause designating the parties to the instrument; the letters "ies" are written over the letter "y" in the word "party" in the clause acknowledging receipt of the consideration paid by the "party of the second part;" the letters "ies" are written over the letter "y" in the word "party" of the phrase "party of the second part" and the word "their" is written over the word "his" in the phrase "his heirs and assigns" in the granting clause; the letters "ies" are written over the letter "y" in the word "party" of the phrase "party of the second part" and the word "their" is written over the word "his" in the phrase "his heirs and assigns" in the warranty clause; but the phrases "party of the second part and his heirs and assigns" in the habendum clause remain as originally written. The deed, with the alterations thereon, was recorded, August 11, 1931. The trial occurred April 22, 1938.

Plaintiff says that the deed, on its face, established material alterations; that defendants' claim of title rested upon said alterations; that plaintiff did not prove the alterations had been made by defendants or at defendants' instigation; that defendants failed to show that the alterations were made before the delivery of the deed or that they were made with the consent of the interested parties, and that the case resolves itself into a question of the burden of proof.

The issue usually arises when a plaintiff grounds his right of action upon an altered instrument and defendant pleads non est factum. Kircher v. Dunnington, 325 Mo. 355, 362, 29 S.W.2d 138, 141[1]; Parker v. Staley (Mo. App.), 55 S.W.2d 332, 333[3]; Bente v. Finley (Mo. App.), 83 S.W.2d 155, 159[4]; Mechanics' Am Nat. Bk. v. Helmbacher, 199 Mo.App. 173, 177, 201 S.W. 382, 384[1]; Collison v. Norman (Mo.), 191 S.W. 60, 62[4]; Carson v. Berthold & Jennings Lumber Co., 270 Mo. 238, 248, 192 S.W. 1018, 1021[8]; Lampe v. Franklin Am. Trust Co., 339 Mo. 361, 377, 96 S.W.2d 710, 718[3, 5-9]. In Hardt v. Phillips Pipe Line Co. (Mo. App.), 85 S.W.2d 202, 204 (also cited by plaintiff), where the Hardts attacked a pipe line right of way deed across their land, their testimony established the alteration of the instrument. Plaintiff stresses certain principles quoted in Kircher v. Dunnington, supra, which cites authorities and involved a change in notes originally drafted in ink upon a printed form by the substitution of the figure "5" in indelible pencil over the word "no," faintly erased, in a phrase reading: "with interest from date at the...