Rone v. Ward
| Decision Date | 10 May 1948 |
| Docket Number | 40441 |
| Citation | 212 S.W.2d 404,357 Mo. 1010 |
| Parties | Mike Rone and Gladys Myracle, Trustees for Herbert Rone, the bodily heirs of Herbert Rone, Wayman Rone, the bodily heirs of Wayman Rone, Raymond Rone, the bodily heirs of Raymond Rone, the general heirs of George W. Rone and Nancy Rone v. Alice Ward and Robert W. Ward, Appellants |
| Court | Missouri Supreme Court |
Rehearing Denied June 14, 1948.
Appeal from Dunklin Circuit Court; Hon. James v. Billings Judge.
Affirmed.
Sam J Corbett and Edward F. Sharp for appellants.
(1) There was no competent testimony in this case that the deed under which plaintiffs claim was ever delivered. The only witness who testified to the delivery was Gladys Myracle and she was an incompetent witness, being a party to the deed, the other party being dead. Sec. 1887, R.S. 1939; Koger v. Black, 220 S.W. 904; Wren v. Sturgeon, 184 S.W. 1036; Terry v. Glover, 235 Mo. 544; LaClede Land Co. v. Goodno, 181 S.W. 410. (2) The incompetency of witness Gladys Myracle was not waived by cross-examination. Kerr v. Insurance Co., 194 S.W.2d 706. (3) There was no sufficient proof of delivery of the deed. 162 A.L.R., note 893-6; Medor v. Ward, 303 Mo. 176; Dixon v. Maddox, 330 Mo. 51; Coles v. Belford, 289 Mo. 97; Galloway v. Galloway, 169 S.W.2d 883. (4) The sufficiency of the evidence to cancel a deed must be strong, cogent and convincing. Edinger v. Kratzer, 175 S.W.2d 807. (5) In an equity case, the court will consider the evidence and determine as to the truth of the matters involved and determine what decree should be entered. Wegmann Realty Co. v. St. Louis, 329 Mo. 972, 47 S.W.2d 770; Schenkmeyer v. Alltheinmere, 327 Mo. 666, 37 S.W.2d 944; Bawzer v. Highway Commissioner, 170 S.W.2d 399; Edinger v. Kratzer, 175 S.W.2d 807. (6) An acknowledgment is not a prerequisite to the validity of a deed as affecting the transfer of title. Elsea v. Smith, 273 Mo. 296, 202 S.W. 1071; Finley v. Babb, 173 Mo. 257. (7) The evidence of the witness Ward and Myracle of their conversation with George W. Rone in which he expressed his intention to give each of his children the homes in which they lived, was competent and material and it was error for the court to exclude it. Blakistone v. Russell, 44 S.W.2d 22; Keatt v. Wolf, 173 S.W.2d 933; Forrester v. Clark, 171 S.W. 647.
Morrell De Reign and Jones & Jones for respondents.
(1) Plaintiffs' right to bring the action, even though out of possession, is statutory. Sec. 1684, R.S. 1939. (2) There is no merit in the contention that the court erred in permitting Gladys Myracle to testify to the delivery of the deed under which plaintiffs claim. McCune v. Goodwillie, 102 S.W. 197, 204 Mo. 306. (3) There is no merit in the contention that the finding of the court adjudging the deed under which appellants claim to be a forgery is wrong, and against all the competent and credible evidence. (4) There is no merit in the contention that the court erred in refusing to permit appellants' witnesses, Bill Ward and C. F. Myracle, to testify that George W. Rone, Sr., in his lifetime told them that he expected to give the children the places they lived on as their home. Walter v. Ford, 74 Mo. 195; School District v. Shiedly, 138 Mo. l.c. 683, 40 S.W. 656; Spencer and Husband v. Vance, 57 Mo. l.c. 429. (5) There is no merit in the contention that the court erred in refusing to permit Robert W. Ward to testify as to a certain conversation he had with C. S. Kirkpatrick. Sec. 1887, R.S. 1939. (6) There is no merit in the contention that the deed under which plaintiffs claim was never delivered in the lifetime of George W. Rone, Sr. Counsel for appellants himself brought out the delivery of the deed in the lifetime of George Rone by showing delivery of the deed to Mike Rone, one of the grantees. (7) But in any event, the deed under which plaintiffs claim was shown to be duly signed, acknowledged and recorded during the lifetime of George W. Rone, Sr. The establishment of these facts creates a presumption of the delivery of the deed. Burke v. Adams, 80 Mo. 504; Jones v. Jefferson, 66 S.W.2d 555; Deer v. King, 30 S.W.2d 980.
Dalton, C. Bradley and Van Osdol, CC., concur.
This is an action in equity to cancel a deed and determine title to described real estate in Pemiscot county. Judgment was entered for plaintiffs and defendants have appealed.
George W. Rone is the common source of title. He died on July 4, 1943, and was survived by his widow, Nancy Jane Rone, and four children, Mike Rone, George W. Rone, Jr. (hereinafter referred to as Son Rone), Gladys Myracle and Alice Ward, and by the children of a deceased son, Charles Rone, towit, Margaret Fay Rone and Charles Ray Rone. The warranty deed, under which respondents claim, is dated June 25, 1942. It was signed by George W. Rone and Nancy Jane Rone, his wife (the latter by mark), and it was duly acknowledged before a notary public on September 5, 1942. It recited a consideration of One Dollar. A life estate was reserved in the grantors. The described property was conveyed in trust for specified beneficiaries and the duties of the trustees are fully set forth in the trust instrument. It was filed for record in Pemiscot county on October 31, 1942, prior to the death of George W. Rone. Appellants (defendants) charged that this deed was not delivered nor its delivery authorized by George W. Rone.
The warranty deed, under which appellants claim (Alice Ward, grantee) is dated July 15, 1942, and recites a consideration of one dollar and other valuable consideration. The same real estate is described as in the deed to respondents. The named grantor, George W. Rone, reserved a life estate for himself and wife. The deed is signed "G. W. Rone" and purports to have been acknowledged by G. W. Rone before C. S. Kirkpatrick, a justice of the peace, on the date above mentioned. The grantor's wife, Mary Jane Rone, did not join in this deed. In their petition respondents attacked this deed as a forgery and sought to have it cancelled and set aside and the cloud thereof removed from respondents' title.
Appellants state that the two principal questions presented by this record are questions of fact upon which the testimony of the witnesses is directly contradictory. The questions are whether the deed to respondents was ever delivered, and whether the deed to Alice Ward was signed by George W. Rone. Appellants first insist there was no competent testimony that the deed to respondents was ever delivered.
Respondents were in possession of the deed to them and it had been recorded in Pemiscot county, during the lifetime of the grantors. Respondents, relying upon the presumption of delivery from such possession, offered the deed in evidence, together with the certificate of the recorder of deeds showing the deed was recorded on October 31, 1942. After the deed had been received in evidence, Mrs. Gladys Myracle, one of the respondents, was cross-examined by appellants' attorney concerning the delivery of this deed, wherein she was one of the grantees. She testified that she was present and saw her father give this deed to her brother, Mike Rone, her co-grantee; that Mike Rone took the deed and other deeds to Caruthersville and had them recorded; and that, thereafter, her brother returned the deeds to her father, George W. Rone, and he delivered this deed and the other deeds to the grantees. She said, "he gave them to us."
Appellants now say that Mrs. Gladys Myracle was the only witness who testified concerning the delivery of the deed; that she was incompetent as a witness, being a grantee in the deed and the other party (grantor) being dead; and that her incompetency as a witness was not waived by cross-examination. No such objection was made at the trial. Mrs. Myracle was a witness for respondents, but she was not asked anything about this deed on direct examination. The evidence now complained of was all voluntarily developed by appellants' attorney on the cross-examination of the witness, and without protest, objection or motion to strike being made. The witness was questioned on the theory that she was competent to give the information sought to be elicited from her and her testimony was heard on that basis. It can not now be contended, on appeal, that the evidence should be disregarded because the witness was incompetent to give it. The incompetency of the witness was waived. McCune v. Goodwillie, 204 Mo. 306, 332, 102 S.W. 997. See, also, In re Trautmann's Estate, 300 Mo. 314, 254 S.W. 286, 288; Hodge v. St. Louis Union Trust Co., (Mo. Sup.), 261 S.W. 67, 72.
Appellants further say that the testimony of Hon. Everett Reeves, an attorney from Caruthersville, Missouri, who testified on behalf of respondents, shows that this deed to respondents was not delivered. Mr. Reeves testified that, about 1943, he was retained by appellants in connection with a contemplated suit to break or set aside the will of George W. Rone deceased; that his employment also contemplated an action to set aside all conveyances made by George W. Rone in his lifetime to his various children and grandchildren, which deeds were then of record; that the proposed suit was "on account of undue influence and the mental incapacity of George W. Rone to make a will or to execute these conveyances"; that a settlement was made with the heirs of George W. Rone, deceased, by which settlement Mike Rone, Son Rone and Gladys Myracle deeded to Alice Ward a three-fourths interest in 120 acres of land devised to them and Son Rone further gave her a check for $ 2000; that this settlement was in addition to a bequest of $ 4000 in cash and all of her indebtedness as given to Alice Ward by her father's will; and that at no time during his employment was he ever shown the deed under which a...
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