Southern v. Southern, 29753.

• Decision Date: 03 September 1932
• Docket Number: No. 29753.,29753.
• Citation: 52 S.W.2d 868
• Parties: SOUTHERN et al. v. SOUTHERN et al.
• Court: Missouri Supreme Court

52 S.W.2d 868

SOUTHERN et al. v. SOUTHERN et al.

No. 29753.

Supreme Court of Missouri, Division No. 1.

September 3, 1932.

Appeal from Circuit Court, Jasper County; S. W. Bates, Judge.

Suit by R. A. Southern and others against R. R. Southern and others. From a judgment for defendants, plaintiffs appeal.

Affirmed.

Norman & Norman and George V. Farris, all of Joplin, for appellants.

Harris & Birkhead, of Carthage, for respondents.

STURGIS, C.

This is a suit to set aside a deed from Robert Southern to R. R. (Rush) Southern, his son, conveying eighty acres of land in Jasper county, Mo. The plaintiffs are the three brothers of the defendant R. R. Southern. In other words, the father deeded this eighty acres of land to one son, and on his death shortly afterwards the other three sons brought this suit to set aside the deed. The mother was also made a defendant to have set aside a deed from the defendant Rush Southern conveying a life estate to her, made after the father's death, but, as she is now dead, the setting aside of this deed is of no importance. The controversy is over this deed from the father to the favored son.

The plaintiffs in their petition allege that this deed, placed of record after the father's death, was wholly without consideration, and was never delivered in the lifetime of the grantor, but was wrongfully obtained by defendant Rush Southern after the death of the grantor and by him placed of record. It is also alleged that said deed is void and should be set aside, for the reason that the grantors, Robert Southern and his wife, were at the time of executing the same of unsound mind and incapable of understanding the transaction, that defendant knew at the time that said grantors were mentally and physically incompetent to execute a deed conveying their land, and that defendant took advantage of their condition and procured the execution of the conveyance by undue influence over the grantors and by estranging the love and affection of Robert Southern and wife for the plaintiffs "by insidious and untruthful propaganda." These matters were denied by answer, and on a trial the court rendered judgment for defendants, from which plaintiffs have appealed.

Plaintiffs produced no evidence of any undue influence used by defendant in procuring this deed, and that issue is abandoned. There was considerable evidence produced on the trial as to the mental capacity of grantors to make this deed. The grantor, Robert Southern, was past eighty-two years of age, nearly blind, and suffered the infirmities of old age. He was shown to be uneducated, and could neither read nor write. The evidence tending to show mental incapacity came largely from the wives of the plaintiffs, grantors' three daughters-in-law. The evidence of the disinterested neighbors and friends, many of them having long and intimate acquaintance, showed Robert Southern to be a man of at least average mentality for one of his age. The local banker, who drew up the deed in question and had transacted business with and for grantor for a number of years, testified that his mind was normal, and the physician who attended him in his declining years gave similar evidence. We need not, however, go into detail on this phase of the case, as appellants in their statement and brief here do not seriously contend that the evidence does not support the trial court's ruling. After reading the evidence, we agree with the trial court on this point.

The real controversy presented here is that the deed in question is void for want of effectual delivery, or rather that such deed is testamentary in character and was not delivered as a conveyance in præsenti. The deed is an ordinary warranty deed, and was signed and acknowledged by the grantors and delivered to Carl L. Spencer, cashier of the Bank of Reeds, at Reeds, Mo. Grantor, Robert Southern, lived in this town of Reeds, Jasper county, at that time, and owned a residence there. The farm in question, on which the grantor had lived many years and until the infirmities of old age caused him to move to town, was a few miles in the country. The three plaintiffs had married and left the old home several years earlier. The defendant also had left home, but, on learning that the old folks needed help and attention, he had returned home, and they arranged to fix up the old home farm and live there.

The only evidence as to the execution and delivery of this deed is that of Carl L. Spencer, who testified on this point: "I have been cashier of the Bank of Reeds about seventeen years and knew Robert Southern and his wife, Sisley. Robert is now dead. He died about the 8th of April, 1928. In October, 1927, he and Sisley Southern came to the bank and the following took place: He came there by himself first and told me that he wished me to draw up a deed to his property. He referred to it as his farm and his town property and told me to draw up a deed to Rush for that property. (The town property is not here in controversy.) I drew up the deed and so then he came up another time and said: `We are going to move out to the farm and I wish you would come down to the house and take the acknowledgments of my wife and I today.' I started down to the house and I knew that Mr. Southern signed by mark. I knew it would be necessary to have two witnesses to his mark, so I stopped at one of the neighbors there and asked him and his wife to go down with me and witness the mark. They said they believed that they had moved out to the farm, but they got in the car and went with me. It was just about a block from there. When we got there we found out they had moved. I went back up to the bank and, as I recall, it was the next day that Bob and his wife came to the bank and signed the deed that I had prepared there. When they signed the deeds, I read the deeds to him and his wife both. I made it in two deeds, one to the farm and one to the town property. As I read one deed, I said: `This is the deed to the farm', and as I read the other deed, I said: "This is the deed to the property here in town.' When they signed the deeds, I handed the deeds to Bob and he said: `No, you take these deeds and keep them.' He further said: `When you hear that Bob Southern is dead, I want you to take those deeds right down to town and record them.' He further said: `I would give them to Rush now, but the rest of the kids would be jumping on me and causing me trouble, and I don't want to be worried about it.' I said: `Well, Bob, you haven't made any provision in there for your wife if you should die first.' He said: `I am stout and hearty. There ain't any danger of my dying first.' I said: `Well, you never know. I just mentioned it to you.' He said: `I am satisfied that Rush will do what is right by his mother,' and he said: `You just kind of look after it yourself; you look after her just like she is your own mother.' I says: `All right, Bob, I will do it.' That was all that was said at that time. When I heard that Mr. Southern had died, I brought the deeds down to the Recorder's office of Jasper County and recorded them. I also prepared deeds from Rush and his wife intending to convey full life use of this...