Sutorius v. Mayor

• Decision Date: 04 May 1943
• Docket Number: No. 38311.,38311.
• Citation: 171 S.W.2d 69
• Parties: SUTORIUS et al. v. MAYOR et al.
• Court: Missouri Supreme Court

171 S.W.2d 69

SUTORIUS et al. v. MAYOR et al.

No. 38311.

Supreme Court of Missouri, Division No. 1.

May 4, 1943.

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

On motion for rehearing.

Motion overruled.

For prior opinion, see 170 S.W.2d 387.

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.

Respondents contend that the opinion conflicts with § 3427, R.S.1939, Mo.R.S.A. § 3427 (providing that certain recorded instruments shall "impart notice to all persons of the contents thereof and all subsequent purchasers and mortgagees shall be deemed, in law and equity, to purchase with notice"), and further conflicts with cases holding that the effect of said statute is that purchasers "are charged with the same knowledge of recorded instruments as they would be of the contents of unrecorded deeds of which they have actual knowledge." Respondents insist that the widow as a devisee under the will of her husband and by reason of the statute, supra, had constructive knowledge of the recorded deeds from her husband to the straw party and back to husband and wife and, having such notice of the contents of the deeds, elected to take under the will. Respondents say that, for the purpose of determining whether the widow elected to take under the will, she must be considered "as having full knowledge of the fact that she was a grantee in the deed" under which she and appellants now claim.

We found that the widow had no actual knowledge of the existence of the deed to her and her husband, nor of her rights thereunder at the time she accepted benefits under the will of her husband; that promptly upon discovery of the true facts and upon learning of her legal rights, she renounced the will, claimed under the deed, and demanded an accounting by the estate; and that she then made the conveyance under which appellants claim. The record indicates, that at the time the widow demanded an accounting, her husband's estate had received more from the widow's real estate than the widow had received from the husband's estate, and there was no satisfactory proof of change of position or prejudice to respondents prior to or by reason of the renunciation of the will.

Respondents have sought relief in equity and insist that the widow waived her rights under the deed, elected to take under the will, and is now estopped to claim under the deed, and ask that her deed to appellants be set aside. We think the widow's constructive knowledge of the existence of the deed, by reason of the statute, supra, was wholly insufficient to sustain the election contended for and, under the facts of this case, the widow could renounce the will and claim her own property upon discovery of the deed. The statute, supra, has no more application on the question of whether a binding election was made than the rule that "everyone is presumed to know the...