Sloan v. Dunlap

• Decision Date: 08 April 1946
• Docket Number: 39453
• Parties: Robert M. Sloan v. David E. Dunlap and Elizabeth Dunlap, Defendants, Fred W. Goodrich, Appellant
• Court: Missouri Supreme Court

194 S.W.2d 32

354 Mo. 1211

Robert M. Sloan v. David E. Dunlap and Elizabeth Dunlap, Defendants, Fred W. Goodrich, Appellant

No. 39453

Supreme Court of Missouri

April 8, 1946

Rehearing Denied April 30, 1946.

Appeal from Jackson Circuit Court; Hon. Emory H. Wright Judge.

Affirmed.

W. H. H. Piatt for appellant.

(1) Fraud, misrepresentation, deceit, misinformation, concealment or suppression of material facts or obvious mistakes vitiates a factual finding, judgment and decree of the court. Sutter v. Easterly, 189 S.W.2d 284. (2) The court erred in denying motion of appellant Fred W. Goodrich, at the opening of the trial before the introduction of evidence and at the conclusion of plaintiff's evidence, for judgment. Wood v. Bradley, 76 Mo. 23; Secs. 915, 922, R.S 1939; Personal Finance Co. of Wellston v. Schwartz, 170 S.W.2d 701; Einstein v. Holliday-Klotz Land Co., 111 S.W. 850, 132 Mo.App. 82; Klatt v. Wolff, 173 S.W.2d 933; Galloway v. Galloway, 169 S.W.2d 883; Thummel v. Holden, 149 Mo. 677; Wells v. Kuhn, 221 S.W. 19. (3) The court erred in abrogating and voiding the warranty deed by secret, restrictive purposes and intentions, not in writing, not alleged in the pleadings and not proven. Sec. 3354, R.S. 1939; Einstein v. Holliday-Klotz Land Co., 132 Mo.App. 82; Thummel v. Holden, 149 Mo. 677; Klatt v. Wolff, 173 S.W.2d 933; Galloway v. Galloway, 169 S.W.2d 883; Personal Finance Co. of Wellston v. Schwartz, 170 S.W.2d 701. (4) The court erred in rendering its judgment against appellant because the petition commingled an action in tort with an action in contract, misjoins parties in unrelated substantive matters not in privity. Secs. 915, 922, R.S. 1939; Mizell v. Osmon, 189 S.W.2d 306; Personal Finance Co. of Wellston v. Schwartz, 170 S.W.2d 701; Einstein v. Holliday-Klotz Land Co., 111 S.W. 850, 132 Mo.App. 82; Klatt v. Wolff, 173 S.W.2d 933; Galloway v. Galloway, 169 S.W.2d 883; Thummel v. Holden, 149 Mo. 677; Koch v. State Highway Comm., 47 S.W.2d 138. (5) The court erred in permitting respondent to rescind and refuse to perform his mutual bilateral option contract, perpetually extended, reaffirmed and confirmed in writing. Derry v. Fielder, 216 Mo. 176. (6) The court erred in entering the two judgments and decrees respectively at the May, 1944, term, August 19, 1944, and at the September, 1944, term, October 30, 1944, and said judgments are a variance, conflicting, contradictory, incongruous, repugnant, unsupported by the evidence, and outside the pleadings and evidence. Secs. 1236, 1243, R.S. 1939; National Lead Co. v. Smith, 134 S.W.2d 1061; Neal v. Curtis Mfg. Co., 41 S.W.2d 543, 328 Mo. 389; Irwin v. Burgan, 28 S.W.2d 1017, 325 Mo. 309; Barr v. Naftziger Baking Co., 41 S.W.2d 559, 328 Mo. 423; Electrolytic Chlorine Co. v. Wallace & Tiernan Co., 41 S.W.2d 1049, 328 Mo. 782; Massey-Harris Harvester Co. v. Federal Reserve Bank of K.C., 48 S.W.2d 158, 226 Mo.App. 916; Sinclair Refining Co. v. Wyatt, 149 S.W.2d 353, 325 Mo.App. 862; Rains v. Moulder, 90 S.W.2d 81, 338 Mo. 275; Friedel v. Bailey, 44 S.W.2d 9, 329 Mo. 22; Burns v. Ames Realty Co., 31 S.W.2d 274. (7) The court erred in denying appellant Goodrich the rights guaranteed him by Sections 4, 10 and 30, Article II, Constitution of Missouri, and Section 1 of the Fourteenth Amendment of the Constitution of the United States. Secs. 4, 10, 30, Art. II, Constitution of Missouri, and Sec. 1, Fourteenth Amendment, Constitution of the United States. (8) The verdict, finding and judgment against appellant Fred W. Goodrich is the result of improper, inflammatory, malicious, insinuating, illegal, slanderous denunciations, irresponsible gossip and assertions by counsel and his plaintiff, and abetted and collaborated by counsel for defendants and cross-petitioners Dunlaps, and their conduct throughout the trial. Authorities cited under Point (6). (9) The Honorable Supreme Court may, under Section 140 of the Civil Code, 1943, give such judgment as the trial court ought to have given, as to this court shall seem agreeable to law.

Luther W. Adamson and R. A. Mooneyham for respondent Robert M. Sloan.

(1) The transfer of possession of the deed from Sloan to Goodrich did not constitute delivery of the deed, and passed no title. Delaney v. Light, 263 S.W. 813; Creamer v. Bivert, 214 Mo. 473, 113 S.W. 1118; Klatt v. Wolff, 173 S.W.2d 933; Dickson v. Maddox, 48 S.W.2d 873, 330 Mo. 51; Forster v. Clark, 171 S.W.2d 647, 351 Mo. 59; Galloway v. Galloway, 169 S.W.2d 883. (2) A manual delivery of a deed is not conclusive proof of a delivery, since the transfer of the dominion and control of the deed must be unhampered without reservation of any rights of revocation or recall and must be with the intent to presently pass title. Ande v. Ande, 28 S.W.2d 665; Cole v. Belford, 289 Mo. 97; Delaney v. Light, 263 S.W. 813. (3) The intention of the parties, particularly of the grantor is the essence of delivery. Chambers v. Chambers, 227 Mo. 262. (4) Such intention may be manifested by acts or by words or both acts and words. Blockman v. Russell, 328 Mo. 1164; Same Case, 44 S.W.2d 22; Sneathen v. Sneathen, 104 Mo. 201; Same Case, 16 S.W. 497. The question of delivery of a deed is a question of intent. Tiedeman, Real Property, sec. 18, pp. 645-646. (6) Whether there was an intention to deliver the deed must be determined by a consideration of all of the facts and circumstances in the case. Powell v. Banks, 146 Mo. 620; Const. Co. v. Tie Co., 185 Mo. 25; Miller v. Hullman, 81 Mo. 311. (7) Where the question is whether a deed was delivered parol evidence is competent. Powell v. Banks, 146 Mo. 633; Vawter v. Hultz, 112 Mo. 640. (8) Fraudulent intent cannot constitute a delivery. Burke v. Adams, 80 Mo. 515; Creamer v. Bivert, 214 Mo. 484. (9) The weight and credibility of the evidence is on the side of the plaintiff. Peters v. Berkemeier, 184 Mo. 393. (10) The option contract and any extension of its time or term, not being perpetual, was terminated by Sloan's notice thereof to Goodrich. Magee v. Mercantile Commerce Bank & Trust Co., 124 S.W.2d 1121, 343 Mo. 1022; Latshaw v. Stoddard, 194 S.W. 727; Massachusetts Bonding & Ins. Co. v. Simonds-Shields-Lonsdale Grain Co., 49 S.W.2d 645, 226 Mo.App. 1071; Clarkson v. Standard Brass. Co., 170 S.W.2d 407; Ward v. Haren, 119 S.W. 446, 139 Mo.App. 8. (11) Appellant's failure to challenge the petition waived the question. Sebek v. Wells, 18 S.W.2d 518. (12) There is only one judgment in this case (which was a final judgment) and falls clearly within the provisions of Sections 1103, 1236 and 1237 of the Revised Statutes of 1939. (13) A judgment may be final although other matters are to be performed thereafter. State ex rel. v. Mulloy, 15 S.W.2d 809; Hurst Automatic Switch & Signal Co. v. Trust Co., 291 Mo. 54. (14) Appellant's assignment of error IV in which appellant says the court erred in rendering a judgment against appellant because the "petition comingled an action in tort with an action in contract misjoins parties in unrelated substantive matters not in privity"; with reference to this assignment we call the court's attention to the declaratory judgment statutes, Sections 1126-1130, both inclusive, also the cases of Smith v. Pettis County, 136 S.W.2d 282; State ex rel. Clay County State Bank v. Waltner, 145 S.W.2d 152.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

This cause was to determine title to real estate, an apartment building in Kansas City, and an accounting was involved. The question of title was between plaintiff and defendant Goodrich. The trial court found that title was in plaintiff and cancelled a deed from plaintiff to defendant Goodrich under which defendant Goodrich claimed title. The accounting between plaintiff and defendant Dunlaps was determined, and plaintiff paid into court $ 734.32 for the Dunlaps, and they delivered to plaintiff, day decree was entered, their deed to the property involved, the apartment building, which deed had been held in escrow. Defendant Goodrich appealed.

The principal question involved is the question of title between plaintiff and defendant Goodrich. Hereinafter we refer to respondent plaintiff as plaintiff and to defendant Goodrich as appellant.

July 29, 1938, plaintiff owned an encumbered farm of 468.17 acres in Lawrence County, Missouri; the respondents Dunlaps owned the encumbered apartment building. On said date plaintiff and respondent David E. Dunlap entered into a contract whereby plaintiff was to exchange his equity in the farm for the equity of the Dunlaps in the apartment building. The exchange agreement was to be consummated by October 15, 1938, but such was not accomplished. By the exchange agreement plaintiff and the Dunlaps, in 5 days, were to execute their respective deeds and deliver these, pending consummation, to C. A. Hizer, the third party named in the exchange agreement. As appears, supra, plaintiff, on day decree was entered, received his deed to the apartment building, and it appears in the record that the Dunlaps received plaintiff's deed to the farm, but just when is not clear. Plaintiff was to pay certain interest and taxes on the farm and certain insurance premiums on policies covering and affecting the apartment building. These payments he was not able to make on time and the Dunlaps, by agreement with plaintiff for reimbursement, paid these items and continued their possession of the apartment building, collected rents, paid expenses, deducted for their outlay, etc. Such was the background for the accounting between plaintiff and the Dunlaps and these rents were the background for the accounting to appellant, if it was determined that he had title to the apartment building.

The loan of $ 15,950 on the apartment building was due April 15 1939, and...