Parker v. Vanhoozer

• Decision Date: 01 February 1898
• Citation: 44 S.W. 728,142 Mo. 621
• Parties: PARKER et al. v. VANHOOZER et al.
• Court: Missouri Supreme Court

44 S.W. 728

142 Mo. 621

PARKER et al. v. VANHOOZER et al.

Supreme Court of Missouri, Division No. 2.

February 1, 1898.

BURDEN OF PROOF — APPEAL — WITNESS — TRANSACTIONS WITH DECEDENT — REFORMATION OF DEED.

1. The burden of proving a mistake in a written instrument is upon the party asserting it.

2. Though the judgment of the trial court reforming a deed is presumed correct, the appellate court cannot refuse to examine the evidence, and give judgment thereon.

3. The grantee being dead, the grantor cannot testify as to the transactions leading up to the execution of the deed.

4. The conveyancer testified that the grantee stated she wanted a deed of the property for her lifetime. The notary taking her acknowledgment testified that she stated that her stepson, the grantor, had made a deed for her lifetime to the land. The son admitted that when he executed the deed he told the notary that he understood its contents. Many witnesses testified as to the strong affection borne by the mother for her stepson, and of expressions of her intention that he should have her estate after her death. The deed conveyed the fee. There was evidence that the son tried to rent the land from his mother's administrators, and made no claim of any mistake in the deed for over seven years after it was executed, and after his mother's death. Held insufficient to show a mutual mistake of the parties, in that they intended the deed to convey a life interest, rather than a fee.

Appeal from circuit court, Buchanan county; A. M. Woodson, Judge.

Action of ejectment by Samuel Parker and others against James C. Vanhoozer and others. From a judgment for defendants, plaintiffs appeal. Reversed.

Casteel & Haynes, for appellants. J. W. Boyd, for respondents.

GANTT, C. J.

Action of ejectment for 89½ acres of land in Buchanan county. Ouster laid on March 1, 1893. The answer is a general denial and an equitable defense, with a prayer for reformation of a deed from James C. Vanhoozer to Harriet Vanhoozer. The circuit court reformed the deed, and gave judgment for defendants. Plaintiffs appeal.

James C. Vanhoozer, the principal defendant, admitting having executed the deed under which plaintiffs claim title, averred and charged in his answer: "That by mutual mistake, error, and oversight on the part of said Harriet Vanhoozer and James C. Vanhoozer and the person who wrote and prepared said deed, the words, `for and during her natural lifetime,' were left out of said deed, when said words by said mutual mistake, agreement, and understanding, should have been inserted in said deed after the following words, to wit, `forever quitclaim unto the said party of the second part,' and also after the words in said deed, to wit, `unto the said party of the second part, and her heirs and assigns,' and in every other place in said deed where said words would be inserted to cause said deed to convey to said Harriet Vanhoozer the interest of the defendant therein only for and during her natural lifetime; and the word `forever,' used in the habendum clause of said deed, was inserted therein by mutual mistake of the parties thereto, and by and in accordance with the mutual understanding and agreement of the parties thereto should have been left out of said deed." Defendant James Vanhoozer, after further admitting that plaintiffs were the sole heirs of Harriet Vanhoozer, asks for a reformation of the deed under which plaintiffs claim title, and that the legal title to said lands be vested in defendant James Vanhoozer. Isaac Vanhoozer, the father of James C. Vanhoozer, and the husband of Harriet Vanhoozer, was admitted to be the common source of title. He died intestate May 12, 1885, leaving James C. Vanhoozer, his only child and heir at law, and the said Harriet as his widow. Mrs. Harriet Vanhoozer died May 3, 1889, without issue by Isaac Vanhoozer, and leaving plaintiffs as her sole heirs at law. The rents and profits were admitted to be of the value of $18 per month. The evidence on behalf of defendants established that Isaac Vanhoozer, in his lifetime, owned about 250 acres of land. By a verbal arrangement he gave his son, James C. Vanhoozer, about 90 acres, but never gave him a deed therefor. After Isaac Vanhoozer's death, Mrs. Vanhoozer, the widow, and James C. agreed upon Judge Bunton, Mr. Fenton, and Mr. Wells to divide the remainder of the lands. The widow desired 10 acres of farming land, and they set off to her the 10 acres and a tract of 79½ acres, less a right of way of about 3 acres. This last tract was very poor and rough. The remainder they set off to the son. No specific directions were given as to how the division was to be made either by Mrs. Vanhoozer or James C. No former assignment of dower or partition was made. Nothing was said that day about deeding the land. Mrs. Vanhoozer remarked that she had raised James C. since he was a little child, and she wanted him to have everything, or rather expected him to have everything, when she died. Afterwards, on May 22, 1885, Mrs. Harriet Vanhoozer executed a quitclaim deed to James C. Vanhoozer for all the remainder of the lands of which his father died seised, and he and his wife on the same day conveyed the land in suit to Harriet Vanhoozer and her heirs forever by a quitclaim deed. W. S. Wells, who prepared the deeds, testified: "They said to me that they wanted me to draw up the deed; that they wanted to know — each one wanted to know — what they were entitled to, and that they wanted me to draw up the deeds between the two parties; and Mrs. Vanhoozer said that she wanted to know what she got during her lifetime, and that she wanted something to show that she was entitled to it, and that all she wanted was the property during her lifetime." In response to this question by the court: "When she directed you to draw the deed, what did she say to you in reference to the length — duration — of the estate, if anything?" Mr. Wells answered, "Well, she just said to me that she wanted me to make a deed from him to her, and she didn't state just what she wanted in the deed, but before that she had stated that she wanted a deed to show what she was entitled to her lifetime." Mr. E. C. Wells testified that at the time he took the old lady's acknowledgment to the deed she made Jim he heard her say "that Jim had made her a deed for her lifetime to the eighty acres on which they lived and ten acres besides." Just before her death she stated to Mr. John Thomas: "That she intended for Jim and his children to have it (the land); said that was the agreement between her and Jim, at her death, why it was to fall to Jim." "That she wanted Jim and his children to have it." "She said that Jim had made her a deed for the ninety acres for her lifetime." And further stated that Mrs. Vanhoozer did not state what kind of a deed Jim had made her, but that "she wanted Jim and his children to have it." Mrs. John Thomas stated that she heard Mrs. Vanhoozer say "she only had a lifetime deed." She said she wanted hers, while she lived, to herself, and then it...