Reasor v. Marshall

• Decision Date: 09 May 1949
• Docket Number: 40809
• Parties: C. H. Reasor and Bina B. Reasor, (Plaintiffs) Respondents, v. Karl W. Marshall, as Administrator of the Estate of W. L. Wright, Deceased, W. M. Wright, Lizzie Street, Mary Ganote and Waneta Parker, (Defendants) Appellants
• Court: Missouri Supreme Court

221 S.W.2d 111

359 Mo. 130

C. H. Reasor and Bina B. Reasor, (Plaintiffs) Respondents, v. Karl W. Marshall, as Administrator of the Estate of W. L. Wright, Deceased, W. M. Wright, Lizzie Street, Mary Ganote and Waneta Parker, (Defendants) Appellants

No. 40809

Supreme Court of Missouri

May 9, 1949

Rehearing Denied June 13, 1949.

Appeal from Mississippi Circuit Court; Hon. Norwin D Houser, Special Judge.

Reversed and remanded (with directions).

SYLLABUS

In an action for specific performance and to quiet title against the administrator and heirs of W. L. Wright a 1934 sales contract from Wright to plaintiffs and certain receipts are found to be forgeries. A 1936 instrument in the nature of a quitclaim deed covering Wright's equitable title, the legal title being subsequently conveyed by deed to Wright, was placed in the hands of a third party but there was no irrevocable delivery for the benefit of plaintiffs, who were in possession as tenants of Wright. The judgment in favor of plaintiffs should be set aside, title quieted in defendants, possession delivered to the administrator and an accounting had for the rents and profits since the death of Wright.

Marshall Craig for appellant Karl W. Marshall, James A. Finch, Jr., and Finch & Finch for appellants W. L. Wright, Lizzie Street, Mary Ganote and Waneta Parker.

(1) Plaintiffs' Exhibit 1 was a forgery and had no probative weight to support plaintiffs' claim of title to the real estate involved and the trial court properly so held. Ryan v. Stubblefield, 100 S.W.2d 444; 18 C.J. 224, sec. 138. (2) Trial court erred in permitting plaintiffs to recover on the basis of the May 28, 1936, conveyance and in treating it by construction as a contract to convey which the court would specifically enforce. There was not sufficient evidence to show the delivery of the conveyance, which is essential for a deed to be effective to pass title to real estate. Clark v. Skinner, 334 Mo. 1190, 70 S.W.2d 1094; Hein v. Payne, 346 Mo. 967, 144 S.W.2d 122; Forster v. Clark, 351 Mo. 59, 171 S.W.2d 647; Southern v. Southern, 52 S.W.2d 868. (3) The May 28, 1936, instrument, being without any covenants of warranty, did not pass the title which W. L. Wright acquired by the warranty deed from Claude Green on October 12, 1937, because only a deed with covenants of warranty will carry an after acquired title. Bogy v. Shoab, 13 Mo. 365; Gibson v. Chouteau, 39 Mo. 536. (4) A conveyance in the nature of a quitclaim deed, which is what the 1936 instrument purported and was held by the trial court to be, will convey only that title then owned by the grantor. Butcher v. Rogers, 60 Mo. 138; Smith v. Washington, 88 Mo. 475; Gibson v. Chouteau, 39 Mo. 536; Bogy v. Shoab, 13 Mo. 365. (5) A quitclaim deed which is ineffectual to pass title because at the time of the conveyance the grantor has no title to the property, cannot be construed to be a contract to convey which the court will specifically enforce and the trial court erred in so doing. Only in cases where the deed is defective as to form or acknowledgment will equity construe the instrument as a contract to convey to be specifically enforced. 58 C.J. 1052, sec. 295, and cases therein cited. (6) If the May 28, 1936, instrument was solely a contract to convey, it was not supported by any consideration, and it was merged in a subsequent warranty deed from Wright to the Reasors dated January, 1941. That deed was a complete execution and merger of the antecedent agreements and constituted a waiver of any conveyance of a greater interest that may have been agreed upon in any prior transaction. Barger v. Healy, 276 Mo. 145, 207 S.W. 499; Frisbee v. Scott, 197 Mo.App. 131, 201 S.W. 561; Employers Indemnity Co. v. Garrett, 327 Mo. 874, 38 S.W.2d 1049; Fulk v. Williams, 37 S.W.2d 511. (7) The 1936 instrument cannot be the basis of relief because it was merged in the 1941 deed and it was not even admissible in evidence. Bean v. Munger Land Co., 265 S.W. 844. (8) The court erred in not refusing equitable relief to plaintiffs because they were before the court with unclean hands. He who comes into equity must come with clean hands. Houtz v. Hellman, 228 Mo. 655, 128 S.W. 1001; Little v. Cunningham, 116 Mo.App. 545, 92 S.W. 734. (9) Unconscionable conduct by the plaintiffs during the progress of the litigation with respect to the action will bar equitable relief. Little v. Cunningham, supra; American Ins. Co. v. Schenfler, 129 F.2d 143; American Ins. Co. v. Lucas, 38 F.Supp. 896; American Ins. Co. v. Lucas, 38 F.Supp. 926; Root Refining Co. v. Universal Oil Products Co., 169 F.2d 514; Prim v. White, 142 S.W. 802. (10) The fact that except for the wrongful or improper conduct the plaintiffs would have been entitled to win does not alter the rule or its application. Little v. Cunningham, supra; General Excavator Co. v. Keystone Driller Co., 62 F.2d 48; Alsheimer v. Palmer, 161 So. 559; Pfender v. Pfender, 144 A. 333, affirmed in 147 A. 911. (11) Wrongful conduct in connection with plaintiff's case impregnates the entire cause of action and bars equitable relief. Precision Instrument Mfg. Co. v. Automotive Maintenance Mach. Co., 324 U.S. 806; Keystone Driller Co. v. General Excavator Co., 290 U.S. 239; General Excavator Co. v. Keystone Driller Co., supra; Gluck v. Rynda Development Co., 134 A. 363. (12) In applying the "clean hands" maxim, the court is concerned primarily with protecting its own integrity and dignity from improper and wrongful action by a party as contrasted with the application of the maxim that one seeking equity must do equity where the court is concerned with rights and duties between the parties. Thus, the court will apply the "clean hands" maxim on its own motion irrespective of the pleadings and of whether actual injury to the other party is or is not shown. Houtz v. Hellman, supra; Creamer v. Bivert, 214 Mo. 473, 113 S.W. 1118; Avery v. Central Bank, 221 Mo. 71, 119 S.W. 1106; Wayland v. Pendleton, 73 S.W.2d 288; American Ins. Co. v. Lucas, supra (2 cases); American Ins. Co. v. Schenfler, supra; Gluck v. Rynda Development Co., supra; MacRae v. MacRae, 294 P. 280; Christians v. Town of East Ridge, 12 Tenn.App. 101.

Haw & Haw, J. M. Haw and James Haw for respondents.

(1) The evidence was insufficient to justify the finding of unclean hands on the part of either of the respondents. Fraud and dishonesty are never presumed, but right rather than wrong action is presumed. Tobin v. Wood, 159 S.W.2d 287; Weitzman v. Weitzman, 156 S.W.2d 906; Aslin v Stoddard County, 106 S.W.2d 472, 341 Mo. 138; Moberly v. Watson, 102 S.W.2d 886, 340 Mo. 820. (2) Expert evidence is merely opinion evidence, not binding on the court. The person by whom the expert is employed and the amount and source of his pay may be shown to affect his credibility. Hall v. Fulton Iron Works, 296 S.W. 851, affirmed 31 S.W.2d 81, 326 Mo. 20; Wood v. Railway, 81 S.W. 852, 181 Mo. 433; Scanlon v. Kansas City, 28 S.W.2d 84, 325 Mo. 125; Wisconsin Alumni Research Foundation v. George A. Dreon & Co., 85 F.2d 166. (3) On the question of fraud the good reputation of respondents for honesty and integrity is entitled to great weight. 70 C.J., p. 824, sec. 1037; In re Mason, 203 S.W.2d 750. (4) Respondents' Exhibit 2, written by Dr. Martin, is admittedly genuine and is a sufficient basis for quieting title in respondents. It is not vitiated by the lack of acknowledgment. Elsea v. Smith, 273 Mo. 396, 202 S.W. 1071; Finley v. Bobb, 173 Mo. 257, 73 S.W. 180. (5) Nor by lack of recital of consideration. Wells v. Kuhn, 221 S.W. 19; Robinson v. Field, 342 Mo. 778, 117 S.W.2d 308; Brown v. Ware, 348 Mo. 135, 152 S.W.2d 649. (6) Nor by the reservation of a life estate. Ruff v. Young, 190 S.W.2d 208, 354 Mo. 506; Wimpe v. Ledford, 177 S.W. 302; Mizell v. Osmon, 189 S.W.2d 306, 354 Mo. 321. (7) This exhibit of May 26, 1936, was in itself a conveyance of all the right W. L. Wright had in the land and, taken with all the facts narrated in the evidence, is sufficient to vest the title in respondents, or, at the very least, as a contract to convey, performance of which will be enforced in equity, even though it be held to be a quitclaim deed. Adams v. Moberg, 205 S.W.2d 553; Inlow v. Herren, 267 S.W. 893, 306 Mo. 42; Mizell v. Osmon, 189 S.W.2d 306, 354 Mo. 321; Kirkpatrick v. Pease, 202 Mo. 471, 101 S.W. 652; 58 C.J., p. 889, sec. 43; p. 1052, sec. 295; 26 C.J.S., sec. 118, p. 416. (8) If it is necessary for a mutual agreement, executed by both parties, to be delivered, leaving this instrument with Dr. Martin was a sufficient delivery. Zumwalt v. Forbis, 163 S.W.2d 574, 349 Mo. 752; Schooler v. Schooler, 258 Mo. 83, 167 S.W. 444; Fenton v. Fenton, 261 Mo. 202, 168 S.W. 1152; Meredith v. Meredith, 229 S.W. 179, 287 Mo. 250; Mendenhall v. Pearce, 20 S.W.2d 670, 323 Mo. 964; Southern v. Southern, 52 S.W.2d 868. (9) Where the instrument is executed by both and left with a third party, and the grantee is put in possession of the land, as in this case, there is a sufficient delivery. Dickson v. Maddox, 48 S.W.2d 873, 330 Mo. 51. (10) The burden of proving nondelivery was on appellants. Klatt v. Wolff, 173 S.W.2d 933; Zumwalt v. Forbis, 163 S.W.2d 574, 349 Mo. 752. (11) The agreement had been fully performed by the parties and, even if it had been an oral agreement, entitled to be enforced in equity. Adams v. Moberg, 205 S.W.2d 553; Cave v. Wells, 5 S.W.2d 636, 319 Mo. 930. (12) No merger was intended and there was no merger, as to either the contract of June 1, 1934, or that of May 28, 1936. Mergers are not favored either in courts of law or courts of equity. It becomes a question of the intention of the parties in whom the two estates are vested. Bassett v. O'Brien, 149 Mo. 381; Morgan v. York, 91 S.W.2d 245; Peters v. Kirkwood Federal Savings &...