Peterman v. Crowley

• Decision Date: 30 December 1920
• Docket Number: No. 21282.,21282.
• Citation: 226 S.W. 944
• Parties: PETERMAN v. CROWLEY.
• Court: Missouri Supreme Court

226 S.W. 944

PETERMAN v. CROWLEY.

No. 21282.

Supreme Court of Missouri, Division No. 2.

December 30, 1920.

Appeal from Circuit Court, Caldwell County; Arch B. Davis, Judge.

Ejectment by Frank B. Peterman against William D. Crowley. From judgment for defendant, plaintiff appeals. Affirmed.

S. S. Shull, of St. Joseph, and W. S. Herndon, of Plattsburg, for appellant.

James L. Farris & Sons and Lavelock & Kirkpatrick, all of Richmond, for respondent.

WHITE, C.

This is an action in ejectment to recover 40 acres of land in Ray county. Suit was brought in that county, and change of venue taken to Caldwell county. On the trial there was a judgment for defendant, from which plaintiff appealed.

Sarah F. Peterman, on November 26, 1906, executed two deeds, in each reciting a consideration of $5 and love and affection, conveying certain land to the plaintiff, Frank B. Peterman; one of which deeds conveyed the land in dispute, the deed under which plaintiff claims title. These deeds were written by Frank Clark, cashier of the Commercial Bank of Lawson, Mo., acknowledged before him as notary, and left with him with instructions to deliver them to the plaintiff upon the death of Sarah F. Peterman.

Some months later, the exact time not given, Mrs. Peterman, with the plaintiff, called at the bank and got the deeds. At that time Sarah F. Peterman lived with her son, the plaintiff. She had two other sons, Charles A. Peterman and Robert E. Peterman. About December 15, 1909, she left her son Frank B., the plaintiff, and went to the home of her son Robert E., and in a day or two took the deeds. The evidence tends to show that, during the period from the time the deeds were taken out of the bank until she left plaintiff's house, they were kept in a room where she slept. They were seen in her possession at the home of Robert, by him and by Charles A., two or three days after she went there to live. Shortly afterwards they were destroyed by her.

On the 11th day of February, 1910, Sarah F. Peterman conveyed the land in dispute to the defendant, Crowley, who went into possession of the premises and continued in possession and paid taxes thereafter, until this suit was brought in May, 1917. Sarah F. Peterman died in December, 1916.

The petition is in the conventional form, setting forth a cause of action in' ejectment. The answer, after a general denial, pleads laches and estoppel. Since an important question argued in the case is whether the deeds, including the one describing the land in dispute, ever were delivered to plaintiff, the statements and acts of Mrs. Peterman at the different dates mentioned above must be considered in determining the nature of the transaction. By one of these deeds she purported to convey to the plaintiff the land in dispute, and by the other deed a tract of land in Clinton county. She inclosed these deeds in an envelope, and handed them to Clark, as he testified, with certain instructions. When asked what those instructions were, Clark testified:

"There were some deeds left, and I think they were all in one bunch with instructions to be delivered, as I remember it, to Frank B. Peterman after the death of Sarah F. Peterman."

A notation was made on the envelope stating what the instructions were, but it was not introduced in evidence, and there is nothing to show its exact terms; nothing more definite than the recollection of Clark, as stated, when testifying some 11 or 12 years later. The evidence does not show who was present with Mrs. Peterman at the time, or who delivered the deeds to Clark or gave him the instructions. A few months afterwards Mrs. Peterman and Frank went into the bank and called for the deeds. Clark turned them over to them — he was not sure to which one of the two — but Frank B. Peterman put them in his overcoat pocket. Clark interpreted his instructions by saying he would not have delivered those deeds to either Mrs. Peterman or Frank without the consent of both. The only evidence as to these transactions, in regard to leaving and recalling those deeds, was the testimony of Clark.

Charles A. Peterman, brother of the plaintiff, testified that in the conversation at the house of Robert E. Peterman, after his mother left the home of Frank, she gave her reasons for taking the deeds out of the bank. He said:

"I looked over the deeds and my mother explained to me why they were made; that they were made and put in the Commercial Bank to be delivered at her death. I asked her the question why she didn't leave them there. She said that she had been told that a deed delivered after death was no good, and for that reason that she took them down and give them to Buster (meaning Frank B.); that she didn't want him to have any trouble about the land."

It was shortly afterward that the deeds were destroyed. This witness, on cross-examination, admitted that he would benefit by it if his brother should win the suit.

Robert E. Peterman testified regarding that conversation. He said that, when Charles protested against her making those deeds to Frank, she explained that Frank had persuaded her to do it; that Frank was to stay home with her and take care of her as long as she lived, and stay single, and at her death he was to have the deeds; they were not to be his until her death; she said the deeds bad not been delivered to Frank.

A Mrs. Vivian testified for the defendant that she heard Mrs. Peterman say in Frank's presence that she wanted "Buster" (meaning Frank B. Peterman) to stay single and take care of her, and if he did he would get more than the rest of the children, if not they should share alike; that she made the deeds with that intention; that the deeds were not Buster's at that time, but were still her property.

Two witnesses who assisted Mrs. Peterman in moving away from the house of her son Frank to that of her son Robert E. testified that, while they were moving the household goods, a conversation occurred between Frank B. Peterman and his mother in which he inquired about some papers she had taken; that she told him the papers did not belong to him; that she got the papers and destroyed them, and he should never have them.

In support of the defense of estoppel, the defendant introduced several witnesses to show that Robert E. Peterman negotiated the sale of the 40 acres in question to the defendant Crowley; he told him that if Frank B. would not buy the 40 that he would sell it to Crowley. They went together to Frank B.'s home, and in the presence of several witnesses the trade was concluded; Crowley paying Mrs. Peterman for the land by a note. The deed was executed and delivered in the presence of Frank B., who was in possession of the 40 acres in question and had some live stock on it. He surrendered possession at the time of the execution and delivery of the deed and removed his stock. At the same time Robert E. Peterman, for his mother, sold Crowley some fence posts and wire which were on the land, reserving portions of the wire and fence posts because Frank B. had claimed them. Division of that property was made amicably. Frank B. was present during the entire transaction and consented to all the arrangements, made no claim of title to the land, made no objection to Crowley's being put in possession, but, on the contrary, gave possession to him.

It was further claimed by defendant that the plaintiff was guilty of laches which would prevent his recovery because of the above facts, and because he allowed seven years to elapse after the purchase by Crowley until Mrs. Peterman, the only person besides Frank who knew...