Ridenour v. Duncan, 44903
| Decision Date | 11 June 1956 |
| Docket Number | No. 44903,No. 2,44903,2 |
| Citation | 291 S.W.2d 900 |
| Parties | Hazel Duncan RIDENOUR, Joyce Snyder and Raymond Duncan, Respondents, v. Nathaniel Wade DUNCAN, Administrator de bonis non of the Estate of Robert Earl Duncan, Deceased, Nathaniel Wade Duncan, Administrator of the Estate of Florence Duncan, Deceased, Eliza W. Herod and Elmer J. Fults, Appellants |
| Court | Missouri Supreme Court |
Clarence C. Chilcott, Earl Dietz, Kansas City, for appellant Nathaniel Wade Duncan.
Jay L. Oldham, Kansas City, for appellant, Eliza W. Herod.
Myer M. Rich, Isadore Rich, Rich & Rich, Kansas City, for respondents, Anthony J. Miceli, Lawrence W. Saeger, Kansas City, of counsel.
BOHLING, Commissioner.
Hazel Duncan Ridenour, Joyce Snyder and Raymond Duncan sued Robert Earl Duncan and Florence Duncan, husband and wife, and Eliza W. Herod and Elmer J. Fults to cancel certain deeds conveying the property commonly known as 907 Prospect avenue, Kansas City, Missouri, a five-apartment building, and all the furniture and furnishings therein, and a deed of trust thereon, and asked, claiming an undivided one-half interest therein, title be decreed and for general equitable relief. A prior appeal, affirming an order granting plaintiffs a new trial, is reported at 246 S.W.2d 765.
Plaintiffs contend Mrs. Goodwin, their paternal grandmother, died seized and possessed of the property involved and they have an undivided one-half interest therein. Defendants Duncan claim the title stood in the names of Robert Earl Duncan and Florence Duncan as a gift at the time of Mrs. Goodwin's death. Mrs. Herod, claiming she was a bona fide purchaser from the Duncans, asked that title be decreed, prayed general equitable relief, and joined with her answer a cross-claim against her codefendants asking $6,000 damages. These issues were tried. The chancellor found for the plaintiffs and defendants have appealed.
Minnie Duncan Goodwin was twice married. Her only children were Sidney Earnest Duncan and Robert Earl Duncan, known in the record as or 'Earnest,' and 'Earl,' respectively; and her sons were named as beneficiaries in equal shares in a will offered in evidence.
Upon suggestions of deaths following the submission of the case, Nathaniel Wade Duncan, administrator de bonis non of the estate of Robert Earl Duncan, deceased, was substituted as a party defendant for said deceased, and Nathaniel Wade Duncan, administrator of the estate of Florence Duncan, deceased, was substituted as a party defendant for said deceased.
S. E. Duncan died July 3, 1947, predeceasing his mother. Plaintiffs are his only children and heirs.
Mrs. Goodwin died about 3:00 a.m. March 18, 1949.
The chancellor, under the evidence hereinafter narrated, found that Minnie Duncan Goodwin was the owner at her death of the property involved; that Elmer J. Fults, who held the record title, was a straw person, having no interest in the property; that Mrs. Goodwin did not in her lifetime make a gift of the property to defendants Robert Earl Duncan and Florence Duncan; that at Mrs. Goodwin's death the property descended and vested in plaintiffs, a one-half interest, and in defendant Robert Earl Duncan, a one-half interest; that, following Mrs. Goodwin's death, the defendants Duncan undertook to convey the property to defendant Eliza W. Herod (the consideration being $4,400); that defendant Herod was not a bona fide purchaser of the property; that Robert Earl Duncan expended $810 clearing the title to the property and plaintiffs stand indebted to said defendant in the amount of $405; that defendant Herod should have paid defendants Duncan $2,200 for an undivided one-half interest in the property but had actually made overpayments to said grantors, and that there is due said Herod from said Duncans $1,400. The decree conformed to said findings, and dismissed the claims against defendant Fults.
The record on the first appeal established that about June 6, 1947, the record title was put in the name of Fults, a straw person, who thereupon executed and delivered a warranty deed with the gtantee's name in blank to Era Bond for Mrs. Goodwin; that after the death of Mrs. Goodwin the names of Robert Earl Duncan and Florence Duncan were inserted in said deed as grantees and the deed was thereafter delivered to Mr. Duncan. 246 S.W.2d loc. cit. 767-769.
Era Bond, a real estate agent, handled all the transfers involved. He was called to the stand by plaintiffs in the instant trial. He was defendant's witness at the first trial. There is some conflict in his testimony at the two trials. The determinative events occurred in March and April, 1949--Mrs. Goodwin's death; Fults-Duncans transaction; Duncans' power of attorney to Bond; Duncans-Herod transaction; the attorney's opinion on the title for defendant Herod. Plaintiffs' petition was filed April 12, 1949. The first trial was in December, 1949. The instant trial was in November, 1952. Asked his age at the instant trial, Bond answered: 'Eighty some, I don't know.' He testified he did not remember certain matters he testified to at the first trial, that three years had passed; that he remembered at the first trial 'as that was pretty close to the time that it was done'; that his 'memory then was better than it is now';
As stated on the first appeal and not developed in detail here, 246 S.W.2d 767, 2d col., Mrs. Goodwin and S. E. Duncan, through Bond, purchased the property for $5,750 on October 26, 1946, taking title in S. E. Duncan. We understand $3,000 was paid down, Bond loaning Mrs. Goodwin $200 and S. E. paying $450. On the same day S. E. Duncan gave back a note for $2,750, payable $30 monthly, secured by a deed of trust on the property, and executed, acknowledged, and delivered to Mrs. Goodwin a warranty deed to the property with the name of the grantee in blank. Mrs. Goodwin, with her husband, lived in one of the apartments. She collected the rents, managed the property and made the payments credited on the note during her lifetime.
The title, according to the record, was kept out of the name of Mrs. Goodwin to deprive her husband, Henry W. Goodwin, of any marital rights in the property should she predecease him.
S. E. Duncan was not well. Mrs. Goodwin received a telegram June 6, 1947, from the Chief Medical Officer, Wadsworth, Kansas, stating that Sidney was seriously ill. Bond, after questioning, testified he remembered Mrs. Goodwin brought the telegram in on June 6, 1947, said Sidney could not hold out long and "I have got to change that property," and that immediately Elmer J. Fults was named as grantee in S. E. Duncan's deed. S. E. Duncan's deed to Fults was recorded June 6, 1947. Fults executed and delivered his warranty deed 'right back,' conveying the property with the grantee in blank, and the deed was put in Bond's safe. Fults was paid $5.
There is testimony from Bond that he testified at the first trial he last saw Mrs. Goodwin when she made a payment on the note (the last credit before her death is dated '3-1-49'), and she said: "I think you just as well put Earl Duncan's name on that deed.' I said 'all right.' She said, I said, and at that date I think I put Earl Duncan's name on the deed'; but that this testimony was not all true, because he did not fill in the grantees' names.
At the instant trial Bond testified that he stated at the first trial he held Fults' deed in his safe from June 6, 1947, until March 17, 1949; that he had studied about the matter and Mrs. Goodwin 'come to me and asked for the envelope that held the deed in blank'; that he got the envelope with the deed out of the safe, gave it to her, and she took it out, and also 'I didn't know it was gone' until she brought it back; that this was two weeks to a month before she died; that he could not state the day she got the deed or returned it; that after a couple of weeks she returned the deed in a sealed envelope with Earl Duncan's name on the envelope; that Mrs. Goodwin was in his office the day before she died, and that Mrs. Goodwin brought the deed back a week or ten days before she died. When Mrs. Goodwin returned the deed, it was placed in his safe, where it remained until he delivered it to Earl Duncan, whom he had never seen before, the day or the day after she died. Bond testified the notary inserted the grantees' names in the deed.
Pressed as to when the grantees' names were put in the Fults deed, Bond answered he was not sure whether it was after Mrs. Goodwin died or the day before she died. Asked if he testified at the first trial: ; and whether his answer was true, he stated: And later, asked if he testified at the first trial:
A. That is right.
'Q. That's what you said? A. Yes.
'Q. (reading): Is that right? A. I think it was.
A letter of January 9, 1948, from Mrs. Goodwin to Mr. and Mrs. Earl Duncan, so far as material, stated: * * *'
Mrs. Mary Scott and Mrs. Addie Collier gave testimony that Mrs. Goodwin told them the property was to go to Earl Duncan.
Earl Duncan testified in substance as follows: The property was a gift from his mother. The first he knew she...
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