Sutorius v. Mayor

• Decision Date: 06 April 1943
• Docket Number: No. 38311.,38311.
• Citation: 170 S.W.2d 387
• Parties: SUTORIUS et al. v. MAYOR et al.
• Court: Missouri Supreme Court

170 S.W.2d 387

SUTORIUS et al. v. MAYOR et al.

No. 38311.

Supreme Court of Missouri, Division No. 1.

April 6, 1943.

Motion for Rehearing Overruled May 4, 1943. See 171 S.W.2d 69.

Appeal from Circuit Court, Jackson County; Albert A. Ridge, Judge.

Action by Irene Mayor Sutorius and others against Wilhemina Mayor, William Jennings Bryan Mayor, and Levonah Mayor Bauer and others. From a decree for plaintiffs, William Jennings Bryan Mayor and Levonah Mayor Bauer appeal.

Reversed.

William S. Warden, Gilbert R. Titus, Paul C. Sprinkle, Wm. F. Knowles, and Sprinkle & Knowles, all of Kansas City, for appellants.

Oscar D. McCollum and August F. Behrendt, both of Kansas City, for respondents.

DALTON, Commissioner.

Action in equity to quiet title and remove cloud on title to described real estate in Jackson County. From a decree granting the relief prayed, two of the defendants have appealed.

Prior to January 30, 1933, the legal title to the nine tracts of particularly described real estate stood in the name of Henry A. Mayor (hereinafter referred to as Mayor). On that date Mayor and wife conveyed to a third party and the third party conveyed to Mayor and Minnie Mayor, as husband and wife. Both deeds were recorded on February 15, 1933. Wilhemina Mayor, referred to in the deeds as Minnie Mayor, was Mayor's fourth wife. Mayor had seven children by his first wife, four of whom predeceased him and another died prior to the present litigation. The living children, and the children of those who are dead, are parties to this suit. Mayor had no children by his second or third wives, but had two by his last wife. The contest here is between the children of the first marriage (or their heirs) and the children of the fourth marriage. The latter are the appellants.

Mayor died April 23, 1935. His widow, Wilhemina Mayor, survived him, but died after the institution of the present suit. Mayor was on friendly terms with all of his children and grandchildren and left a will, dated February 21, 1935, creating a trust estate and making provision for his widow and children, or their heirs. The detailed bequests will be referred to subsequently. Two of the nine tracts of real estate, supra, were particularly mentioned in the will and, from its terms, we think it apparent that Mayor assumed he owned the two mentioned tracts, and much more additional real estate than actually stood in his name at the time of his death. Those connected with the administration of his estate assumed that he owned all of the real estate in controversy; it was inventoried as a part of his estate and proceedings were had in exactly the same manner as though the real estate were an asset of the estate. On November 6, 1935, some of the children of the first marriage filed a suit to construe the will of Henry A. Mayor, deceased, as to particular matters, and the will was construed. Thereafter, on April 6, 1939, upon discovery of the deed to husband and wife, the widow (the surviving tenant by the entirety) conveyed all of the nine tracts of real estate to her own children (appellants here), reserving a life estate for herself.

Respondents proceeded on the theory that the conveyances of January 30, 1933, created only an apparent estate by the entirety; that no such estate was intended by the parties; that equitable title (by resulting trust) remained in Mayor; that, in any event, the widow waived her interest under the deed, elected to take under the will of her husband and was, thereby, estopped to claim under the deed; and that the conveyance by the widow to her children, purporting to convey the real estate subject to a life estate in the widow, was void and constituted a cloud on plaintiffs' title.

The trial court found in accordance with respondents' contentions (on both theories), to wit, that Mayor was the equitable owner of the real estate at the time of his death; that the widow, during her lifetime and widowhood, by acts and conduct, made an election to take under the will; that she and those claiming under her were estopped to claim any rights in the described real estate, other than were granted under the will; that her deed to appellants (her children) constituted a cloud on the title to the real estate; that such deed was void and should be (and was) cancelled and set aside; and that title was vested in the trustee of the trust set up and declared in Mayor's will.

Appellants assign error on the admission of evidence and the findings contained in the decree.

The first charge contained in the petition is that on January 30, 1933, because of a damage suit for slander which had previously been instituted against him, Mayor and his wife conveyed all of the described property to a straw party "and as a part of the same transaction" had it reconveyed to himself and wife, creating an "apparent estate by the entirety" in Mayor and wife; that the deeds were executed and filed solely for the convenience of Mayor "by way of avoiding a lien upon said lands of any judgment that might be procured in the aforesaid suit, and not for the purpose of creating an estate by the entirety"; that his wife "joined therein, had actual knowledge thereof and acquiesced in said transaction"; and that the wife was never the owner of the real estate, but Mayor remained the equitable owner thereof.

The answer filed by appellants (concerning this part of the petition) admitted Mayor's ownership of the described real estate, prior to January 30, 1933, the relationship of the parties to the deeds, the existence of the conveyances alleged, but denied other allegations.

In support of the allegations, supra, it appeared that on October 3, 1932, a Mrs. Vasey sued Mayor for $35,000 for slander; that the cause was pending until December 12, 1934, when it was compromised and settled for $250; that while said cause was pending and prior to the admitted conveyances, Mayor, who seemed very much upset by reason of the pending suit, said to a daughter by his first wife (one of the plaintiff's below) and in the presence of his wife, Wilhemina (referred to as "Mama"), "I am afraid we will have to put this in Mama's name until this suit is settled." There was no showing that Mayor referred to the nine pieces of real estate in question, or to any real estate, but that issue is not raised. The evidence, supra, concerning the statement of Mayor to his wife was objected to and was admitted over objection that the witness was incompetent under Sec. 1887, R.S.1939, 8 Mo.R.S.A. p. 78, § 1887, because she was a party to the cause of action on trial, because she was claiming under Mayor, and because both Mayor and Wilhemina Mayor were dead. Appellants, who claim through their mother (Wilhemina Mayor, hereinafter referred to as the widow or Mrs. Mayor), assign error on the admission of this evidence.

Respondents say that the statement admitted in evidence bears only on the intent of Mayor at the time and only indirectly relates to the subsequent deeds; that Mayor himself, if living, would not be disqualified to testify as to his intention in making the conveyance; that there was no contract in existence; that the "other party" to the conveyances was the straw party, not Mrs. Mayor; that the executor under the will of Mayor is only a nominal and not an adverse party; and that the court did not err in admitting the statement. It may be noted, however, that this was the only evidence admitted in support of the allegation that Mrs. Mayor had actual knowledge that the conveyance was solely for the convenience of Mayor, to create an apparent estate by the entirety, by way of avoiding a lien upon said lands of any judgment in the slander suit, and that Mrs. Mayor acquiesced in the transaction. It is upon the basis of this evidence that respondents subsequently insist that the declaration, and the provisions of the subsequent will, were communicated to the adverse party (Mrs. Mayor) under circumstances which called for a denial and that she (the adverse party) assented to and acquiesced in the declaration and in the terms of the subsequent will. It is on the basis of this evidence, and upon this evidence alone, that respondents say, "She knew that her husband had previously expressed his intention of doing this (making the conveyance) to protect the properties from the lien of a possible judgment in a damage suit recently filed and then pending." Respondents further insist that the fact that Mrs. Mayor joined with her husband in the first deed (to the straw party) shows "she must have known for what purpose the conveyance was made." Aside from the alleged declaration, however, there is nothing in the record to show Mrs. Mayor knew her husband's purpose was to create temporarily an apparent estate by the entirety solely for his own convenience, or knew that no gift or provision for her was intended. We mention these facts to show the importance of the evidence objected to.

Section 1887, supra, among other things, provides: "* * * in actions where one of the original parties to the contract or cause of action in issue and on trial is dead * * * the other party to such contract or cause of action shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him, and no party to such suit or proceeding whose right of action or defense is derived to him from one who is, or if living would be, subject to the foregoing disqualification, shall be admitted to testify in his own favor, except as in this section is provided * * *." (The exceptions do not apply.) (Italics ours.)

The witness was one of the plaintiffs in the case; her rights were derived from her father and her father, if living, could not have testified to the alleged fact testified to by the witness, because Mrs. Mayor, if living, might have questioned or denied it. Elsea v. Smith, 273 Mo. 396, 408, 202 S.W. 1071. Accordingly, the witness cannot testify to such fact in her own behalf where both...