Slagle v. Callaway

• Decision Date: 19 October 1933
• Docket Number: 30861
• Citation: 64 S.W.2d 923,333 Mo. 1055
• Parties: Ella Slagle and Anna Russell, Appellants, v. Walter Callaway, Lorene Cunnyngham, Ruth Shoffer, Joe Callaway, Mrs. Ella Callaway and Mrs. Maud May
• Court: Missouri Supreme Court

64 S.W.2d 923

333 Mo. 1055

Ella Slagle and Anna Russell, Appellants, v. Walter Callaway, Lorene Cunnyngham, Ruth Shoffer, Joe Callaway, Mrs. Ella Callaway and Mrs. Maud May

No. 30861

Supreme Court of Missouri

October 19, 1933

Appeal from Polk Circuit Court; Hon. C. H. Skinker, Judge.

Affirmed.

Herman Pufahl for appellants.

(1) Assessment of property is evidence of ownership. Betles v. Magoon, 85 Mo. 587; Johnson v. Johnson, 173 Mo. 104, 61 L. R. A. 166; State v. West, 246 S.W 542. (2) Payment of taxes is evidence of ownership. Pharis v. Jones, 122 Mo. 131; Carter v. Horn back, 139 Mo. 245; Stone v. Perkins, 217 Mo 602; Chilton v. Comanimmi, 221 Mo. 685; Woodside v. Durham, 317 Mo. 15, 295 S.W. 772. (3) In order to constitute delivery, the grantor must divest himself of all dominion over the deed and unless this is done there is no delivery under the law. Huey v. Huey, 65 Mo. 689; Scott v. Scott, 95 Mo. 318; Tyler v. Hall, 106 Mo. 313; Griffen v. McIntosh, 176 Mo. 392; Griffin v. Miller, 188 Mo. 327; Bunn v Stuart, 183 Mo. 383; Peters v. Berkenmier, 184 Mo. 393; Rausch v. Michel, 192 Mo. 293; McCune v. Goodwillie, 204 Mo. 306; Terry v. Glover, 235 Mo. 544. The delivery of a deed is not complete until it is accepted by the grantee. Brooks v. Johnson, 199 S.W. 204; Stump v. Marshall, 266 S.W. 476; Weller v. Meadows, 273 S.W. 89. (4) Ella Slagle, one of the plaintiffs, and Austin Slagle, her husband, were competent witnesses, as to conversations with Ben H. Callaway, Jr., in the one of which he told Mrs. Slagle that his father had told him that the deed was in the bank, and after his death to go and get it and have it recorded, and in the other one of which he told Austin Slagle that he had tried to buy the land from his father, but that his father would not sell. R. S. 1929, secs. 1723, 1728; Martin v. Abernathy, 278 S.W. 1050, 220 Mo.App. 76. (5) Where there are several parties to a contract, and there is still one of them alive, the other party to the contract is a competent witness. Walter Callaway is still alive. Fulkerson v. Thornton, 68 Mo. 468; Williams v. Perkins, 83 Mo. 379; Wahl v. Cunningham, 6 S.W.2d 586, 320 Mo. 57.

T. H. Douglas for respondent.

(1) Payment of taxes, occupancy and insuring buildings on premises by grantor after making and delivery of deed, cannot defeat the effect of a warranty deed. Mendenhall v. Pearce, 20 S.W.2d 674; Meredith v. Meredith, 287 Mo. 250, 229 S.W. 179; Gillespie v. Gillespie, 289 S.W. 579; Fenton v. Fenton, 261 Mo. 202; Givens v. Marbut, 259 Mo. 223; Chambers v. Chambers, 227 Mo. 262; 18 C. J. p. 217, sec. 127. (2) When a deed has been delivered, acceptance by the grantee may be shown by his acts, and acceptance may be before or after the death of the grantor. Coulson v. Coulson, 180 Mo. 716; Burkey v. Burkey, 175 S.W. 624. (a) In the case at bar, there is not an iota of evidence that the grantees refused to accept the deed. The evidence does show that they did accept it and had it recorded. The rule is that acceptance, like delivery, may be shown by indirect or inferential evidence, as well as by express or positive testimony. The presumption of both delivery and acceptance is stronger where the deed is voluntary (as in this case) than when it is a sale of the land. Cases last cited: Schooler v. Schooler, 258 Mo. 92. (b) "Conveyance being for benefit of the grantees, their acceptance will be presumed, unless they show affirmatively that they disclaim." Whittaker v. Whittaker, 175 Mo. 9; Chambers v. Chambers, 227 Mo. 284; Rawley v. Rawley, 197 S.W. 155. (3) In this case, there is no question of the delivery of the deed by Ben H. Callaway, Sr., in his lifetime, to his son Ben H. Callaway, Jr., as measured and tested by the rules and law laid down and enunciated by the prior decisions of this court. Schooler v. Schooler, 258 Mo. 83; Terry v. Glover, 235 Mo. 550; Headington v. Headington, 214 S.W. 963; Tobin v. Bass, 85 Mo. 654; Burkey v. Burkey, 175 S.W. 623; Goodman v. Griffith, 238 Mo. 715; Givens v. Marbut, 259 Mo. 223; Parsons v. Parsons, 45 Mo. 268; Gillespie v. Gillespie, 289 S.W. 579; Chambers v. Chambers 227 Mo. 277; Blackiston v. Russell, 44 S.W.2d 26; Miles v. Robertson, 258 Mo. 717. Delivery to one or more of cograntees is sufficient as to all unless a disclaimer is shown. 18 C. J., p. 212, sec. 117. (4) If a deed is once delivered, no subsequent act of grantor can impair the validity of the conveyance; the title is then in the grantee and cannot be recovered from him except in a legal proceeding. Tiedman on Real Property, sec. 812; Parsons v. Parsons, 45 Mo. 265; Blackiston v. Russell, 44 S.W.2d 26. It is presumed that a deed was delivered when found in the possession of the person or persons to whom it was made. Green v. Yarnall, 6 Mo. 326; Rogers v. Carey, 47 Mo. 234. (5) The court properly excluded the proffered testimony of Ella Slagle, one of the plaintiffs, as to purported statements of her deceased brother, B. H. Callaway, Jr. He was a party defendant to this action and died before the trial, and his widow and child were made parties in his stead. This made Mrs. Slagle incompetent as to conversations with him or any purported statements made by him, because, being dead he could not refute such testimony. Sec. 1723, R. S. 1929; Eaton v. Cates, 175 S.W. 953; Davis v. Robb, 10 S.W.2d 681; Elsea v. Smith, 273 Mo. 407, 202 S.W. 1073. (a) The trial court permitted Austin Slagle, husband of Ella Slagle, one of the plaintiffs, to testify to all matters, without objection, except his purported conversation with his deceased brother-in-law, Ben Callaway, Jr. He was competent for all other purposes. Even if it be admitted that the court was in error in excluding such offered testimony the result reached by the trial court should not be disturbed, because such proffered testimony would not overcome the great weight of evidence which preponderates in favor of the respondents. The Supreme Court, "in an equity case, considers such evidence in the record as it deems admissible, excludes from consideration evidence improperly admitted, and reaches its judgment on the competent evidence offered without regard to the trial court's rulings." Snow v. Funck, 41 S.W.2d 5; Blackiston v. Russell, 44 S.W.2d 27; Rinkel v. Lubke, 246 Mo. 392; Jones v. Thomas, 218 Mo. 544; Henson v. Neal, 215 Mo. 270. (6) Clint May, husband of Maud May, one of the parties defendant, was a competent witness for all purposes for which he was offered. Sec. 1728, R. S. 1929; Eastin v. Bank v. Harrisonville, 246 S.W. 994; Robertson v. Garrison's Estate, 21 S.W.2d 202; Martin v. Abernathy, 278 S.W. 1050; Hughes v. Renshaw, 282 S.W. 1020.

OPINION

Hays, J.

Action in three counts; the first in partition, the second to set aside a certain deed as ineffectual on the sole ground of want of delivery, and the third to determine title. The parties waived a jury and tried all the issues to the court. The case was submitted without instructions being given or requested. The court found the issues against the plaintiffs, rendered judgment dismissing the first and second counts, finding that the deed in question was duly executed and delivered by the maker, and determining and adjudicating the title in fee to be vested in defendants Walter Callaway, Ella Callaway and Maud May in the aliquot shares set out in the judgment. From the judgment the plaintiffs appealed.

The land in controversy is the southeast quarter of the northwest quarter and the northeast quarter of the southeast quarter, all in section thirty-three (33), township thirty-three (33) of range twenty-two (22), situate in Polk County. The grantor named in the said deed was Ben H. Callaway and the grantees were Ben H. Callaway, Jr., and Walter Callaway, sons of the purported grantor, a widower. The action was instituted by Ella Slagle and Anna Russell, daughters of Ben H. Callaway, then deceased intestate, against said purported grantees together with Joe Callaway, another son, and Lorene Cunnyngham and Ruth Shoffer, heirs of a deceased daughter of the decedent Callaway; the then parties being the sole heirs at law of said decedent. Ben H. Callaway, Jr., had died before the case came on for trial and the cause was revived as against his widow, Ella Callaway, and his daughter Maud May, his sole heirs, both of whom entered their general appearance and filed answer.

The first count was purely a statutory action in partition, the petition in substance alleging that the decedent had died owning said land, the descent cast (as stated above), the co-tenancy of the parties and the lack of susceptibility of the land of being partitioned in kind, and containing prayer for sale in partition. The second count was substantially a reiteration of the essential matters pleaded in the first count, with additional matter to the effect that said deed of date February 19, 1916, purporting to be acknowledged on the same day, and recorded January 23, 1929, -- some twenty days after the death of the decedent, -- without ever having been delivered by him to the alleged grantees or any one for them; that decedent down to his death, at the age of eighty-three, had claimed to own the premises and had exercised the usual acts of ownership -- stated in detail; and that the deed was a cloud upon the title of the plaintiff, which they prayed to have removed by the aid of the court in setting aside and canceling the deed. The third count alleged that plaintiffs were owners of aliquot shares in the land; that the defendants made claim of title conflicting with plaintiffs'; that the claim of defendants was invalid because based upon said deed which, it is alleged, was never delivered. The prayer was for the ascertainment and determination of the title as among the parties to the action and for...