Polette v. Williams

Citation456 S.W.2d 328
Decision Date13 July 1970
Docket NumberNo. 2,No. 54867,54867,2
PartiesNellie POLETTE and Sarah Graham, Appellants, v. Walter G. WILLIAMS and Sharon Williams, his wife, Respondents
CourtMissouri Supreme Court

Earl R. Blackwell, Hillsboro, for appellants.

Roland A. Wegmann, Dearings, Richeson, Roberts & Wegmann, Hillsboro, for respondents.

HENRY I. EAGER, Special Commissioner.

In this equity action two sisters seek to set aside a deed of real estate from their parents to their brother. Another sister was not made a party. We have jurisdiction because title to real estate is directly involved. The trial court found the issues for the defendants, the son and his wife, and entered judgment in their favor. It made no findings of fact, as none were requested.

In the view we take it will not be necessary to state the evidence in detail. In 1953 Alfred G. Williams and his wife, Lillie May, were living in their home on this real estate and had done so for years; their adult son Walter lived with them. He was then single. The parents were elderly and Mr. Williams had not been employed for some years; the son was employed except for certain periods of 'lay-offs.' On October 10, 1953, Alfred G. and Lillie May Williams executed and acknowledged a warranty deed of the property to the son Walter; the consideration stated was 'one dollar and other valuable considerations,' and the conveyance was made subject to a reserved life estate. The principal controversy here arises over the following clause contained in the deed: 'As a part of the consideration for the sale of this real estate, the second party binds and obligates himself to provide a suitable home for first parties upon the above described premises and to provide first parties, as long as they both live, with all necessities of life, including food, clothing, shelter, luxuries, medical and hospital attention, drugs and any other items necessary to the comfort and maintenance of first parties. In the event second party fails to fully and faithfully comply with this provision and obligation, title to the above described premises shall revert to first parties, and in such event second party shall forfeit any and all payments made by him upon the purchase price of said real estate.'

On the date of this deed Walter executed a note to his parents for $6,000, and a deed of trust on the land to secure the note; he also signed, and presumably delivered to them, his check for $2,000. The note and deed of trust are not among the exhibits, but the record of the deed of trust was produced, and the cancelled check was received in evidence.

In the petition the plaintiffs allege that defendant Walter (the other defendant was his wife) failed to 'faithfully comply with his obligation' to provide for his parents and that because thereof the title to the real estate had reverted to the estate of Lillie May Williams for the benefit of plaintiffs; wherefore, plaintiffs prayed cancellation of the deed. The answer denied the substantive allegations of the petition and pleaded affirmatively: that Wanda Thurman, a sister of the plaintiffs, had not been made a party, and that she was a necessary party; that defendant Walter had paid a good and valuable consideration of $8000 to his parents, in addition to complying with the provisions for support, and that he had fully complied with that provision of the deed; that any right of reverter was personal to the grantors and would not descend to their heirs at law.

The deed in question was executed by Mr. Williams by his mark, witnessed by M. C. Matthes who subsequently became and is now Judge of the United States Court of Appeals. The acknowledgment was also taken by him. The evidence showed that in his later years Mr. Williams' vision was very poor. He died on November 11, 1961; Mrs. Williams died on March 20, 1964. Walter married on January 12, 1957, and moved to a house 'down the hill' from his parents' home. Cancelled checks of Walter were produced and received in evidence showing the payment monthly from November 10, 1953, to November 9, 1958, of sums varying from $115 to $100; these checks were made to Mr. and Mrs. Alfred G. Williams or to Mr. or Mrs. Alfred G. Williams; all were endorsed and cancelled. The total of these checks was $6,557.50. Walter's wife, Sharon, testified at length and produced other cancelled checks showing the payment by Walter or by her from their joint account of bills for electricity, fuel oil, medical expenses, and miscellaneous purchases, for the period from February 1957 to March 1964. These, she said, were for the expenses of both parents until Mr. Williams died, and thereafter for Mrs. Williams; the total of these checks was $5,782.54. She had known the parents for some years before her marriage to Walter. She further testified, corroborated to some extent by neighbors: that Walter did the outside work on his parents' place, including plowing, putting up hay, etc.; that they took the mother shopping for groceries every week and gave her the necessary money for the groceries; that Walter was at the family home almost every day; that Mr. and Mrs. Williams bought $5,000 of savings bonds in their joint names but that after his death Mrs. Williams put these in the names of herself and Walter. The evidence indicated that Mr. and Mrs. Williams and she, after his death, were comfortable and satisfied, and that they never 'wanted' for anything; also that Mrs. Williams expressed satisfaction with the manner in which her son was taking care of her. Plaintiffs' evidence, much of which was received over objection, was in substance: that the undertaker, at the instance of Walter, procured an order refusing letters of administration on the estate of Mrs. Williams, showing assets of $381.86 in a bank account; that he also presented to the Recorder the $6,000 note of Walter to his parents and procured the release of the deed of trust; that he was paid something less than $1,000 by Walter for the funeral expenses. The gist of this evidence was, generally, that Walter not only got the farm but the savings bonds and most of whatever else his mother had left. A copy of the bank records of a modest checking account of Mr. and Mrs. Williams was received, showing checks or withdrawals by one or both of various sums from 1951 to 1964. The total number of checks drawn were approximately 122, and the balance on the date of Mrs. Williams' death was $381.86. There was evidence for defendants that Mrs. Williams, the mother of Walter, had told a relative that she had things 'fixed' so that Walter would get everything, because he had done the work and 'kept them up,' with similar remarks to another relative. The evidence indicated that the three sisters had done comparatively little for their parents. The sister who was not made a party testified for defendants, telling generally of Walter's care of his parents, and of a meeting of the heirs after her mother's death. It was her understanding that some money was to be divided and that she would get something over $1,700; she said that she still thought she was going to get that.

Aside from the merits, respondents have raised certain questions which must be decided. They are: (1) that the provisions for support and for a reverter were personal to the grantors and may not be enforced by the heirs; (2) that plaintiffs have failed to join all necessary parties in that they omitted the sister who was present and testified; and (3) that the remedy should have been sought in ejectment and not in a suit to cancel.

We consider, first, whether or not the right to enforce a reverter descended to the heirs. Plaintiffs cite two cases which merely hold that an heir may maintain a suit to cancel a deed for fraud, undue influence, etc. This is not our precise point. Herrold v. Hart, Mo., 290 S.W.2d 49; Welpton v. Jameson, Mo., 266 S.W.2d 594. There is considerable disparity and some confusion in the cases. We have determined that the weight of authority and the better rule is that for the breach of a condition subsequent clearly expressed in a deed, the right, or 'the possibility of reverter,' as it is sometimes called, does descend to the heirs, but that it is not alienable, assignable or devisable. We have no doubt that this provision constituted a condition subsequent; such a condition operates upon an estate already created and vested, and renders it liable to be defeated. 26 C.J.S. Deeds § 147b(2), p. 1050. The estate here had vested, id., Davis v. Austin, 348 Mo. 1094, 156 S.W.2d 903, subject only to divestiture. Distinctions are sometimes made between deeds which contain mere promises of support and those which actually condition the estate granted upon the performance of a condition expressed. Reynolds v. Reynolds, 234 Mo. 144, 136 S.W. 411; Anderson v. Gaines, 156 Mo. 664, 57 S.W. 726; Mercantile Bank of Louisiana v. Becker, Mo.App., 43 S.W.2d 862. Here a reversion was clearly expressed in the deed conditioned upon a failure to perform. While the courts generally look upon conditions of forfeiture with disfavor, they must be enforced if clearly expressed.

Defendants cite certain authorities supposedly indicating that the right of reentry or reversion does not descend to the heirs. In their citation of 26 C.J.S. Deeds § 148, it is stated that only the grantor 'or his heirs' can take advantage of a breach of condition. This does not support their position. Defendants cite no Missouri cases. Of the outstate cases we note the following: in some, the promise of support was apparently stated only in a separate contract and was not mentioned in the deed; that could hardly constitute a true condition subsequent. Haslinger v. Gabel, 344 Ill. 354, 176 N.E. 340; Roche v. Roche, 286 Ill. 336, 121 N.E. 621; Chicago Title & Trust Co. v. Friedland, 304 Ill. 248, 136 N.E. 720; Malicki v. Malicki, 189 Minn. 121, 248 N.W. 723. In others the agreement, though stated or...

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17 cases
  • Skidmore v. Back
    • United States
    • Missouri Court of Appeals
    • May 9, 1974
    ...be necessary to a complete determination of the issues involved-relitigation being the evil sought to be avoided. Polette v. Williams, 456 S.W.2d 328, 332--333 (Mo.1970). While perhaps Mr. Back's joinder may have been desirable, disposition of this case by imposing a constructive trust in n......
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    ...the trial and testifies adversely to its own interests or disclaims any interest in the subject matter of the suit. Polette v. Williams, 456 S.W.2d 328, 333 (Mo. 1970); Spellerberg v. Huhn, 672 S.W.2d 728 (Mo. App. 1984). The cases and authorities uniformly identify the mortgagee as a neces......
  • Pauli v. Spicer
    • United States
    • U.S. District Court — Eastern District of Missouri
    • October 14, 2014
    ...see, e.g., Epstein, 316 S.W.3d at 460, and any such judgment would fail to establish a clear right to title, see Polette v. Williams, 456 S.W.2d 328, 333 (Mo.1970) (in litigation involving title to real estate, “all interested parties must be bound by any judgment in order to establish a cl......
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    • Missouri Court of Appeals
    • October 14, 2014
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