Thomas v. Scott

• Decision Date: 08 June 1909
• Citation: 221 Mo. 271,119 S.W. 1098
• Parties: THOMAS v. SCOTT.
• Court: Missouri Supreme Court

119 S.W. 1098

221 Mo. 271

THOMAS v. SCOTT.

Supreme Court of Missouri.

June 8, 1909.

1. APPEAL AND ERROR (§ 1056)—EVIDENCE— EXCLUSION—PREJUDICE.

Where, in a suit to establish a lost deed, alleged to have been executed by defendant and handed to her then husband, since deceased, the deed was treated by defendant as delivered and as an operative conveyance, and she testified that she never authorized her husband to deliver the deed to the grantee, but knew what her husband was going to do with it, knew what he did do with it, but never asked him for the deed, though she learned that the grantee had it, of which she did not complain, she was not prejudiced by the exclusion of her offered testimony that, when she handed the deed to her husband, she instructed him, in the absence of the grantee, not to deliver it to him, but to a third person.

2. APPEAL AND ERROR (§ 169)—REVIEW— QUESTIONS NOT RAISED AT TRIAL.

Questions not raised at the trial are not reviewable on appeal.

3. LOST INSTRUMENTS (§ 7)—DEEDS—PROCEEDINGS TO ESTABLISH—AFFIDAVIT— AUTHORITY OF AGENT.

Under Rev. St. 1899, § 4565 (Ann. St. 1906, p. 2480), relating to the establishment of lost instruments, and providing that the petition shall be verified by the affidavit of the petitioner or petitioners or by the affidavit of some person petitioning in his, her, or their behalf, an affidavit may be made by the petitioner's agent.

4. LOST INSTRUMENTS (§ 6)—ESTABLISHMENT —DEEDS—PERSONS ENTITLED TO SUE.

Under Rev. St. 1899, § 4565 (Ann. St. 1906, p. 2480), providing for the establishment of lost instruments, a proceeding to establish a destroyed deed need not necessarily be brought by the grantee, but may be maintained by any person holding title under mesne conveyance from him whose estate is in jeopardy because of the loss or destruction of the deed.

5. LOST INSTRUMENTS (§ 10)—STATUTES— TITLE TO REALTY.

Rev. St. 1899, c. 59 (Ann. St. 1906, p. 2472), providing for the establishment of lost instruments to establish land titles, involves the title to realty only so far as is necessary to establish the lost or destroyed deed, the court in establishing such deed being authorized only to declare the execution, loss or destruction thereof, a description of the instrument, names of the grantor and grantee, the estate or interest conveyed by the deed, the date of execution, and the manner of loss or destruction, etc.

6. STATUTES (§ 115)—VALIDITY—TITLE.

Rev. St. 1899, c. 59 (Ann. St. 1906, p. 2472), providing for the establishment of lost instruments relating to land titles, and for the perpetuation of testimony concerning the same, it is not unconstitutional as contending matter not within its title.

7. FRAUD (§ 50)—BURDEN OF PROOF.

A party is not bound to disprove a charge of fraud which is neither directly or constructively proved by the party making it carrying the burden of proof.

8. LOST INSTRUMENTS (§ 3)—DESTRUCTION— RE-ESTABLISHMENT—ESTOPPEL.

If an unrecorded deed is destroyed for the honest purpose of revesting title in the grantor, one consenting to such destruction is estopped to re-establish the deed.

9. LOST INSTRUMENTS (§ 8)—UNRECORDED DEED—DESTRUCTION—EVIDENCE.

In a suit to re-establish a destroyed deed, evidence held to warrant a finding that the deed was not destroyed at the grantee's request or to reinvest title in the grantor, but to prevent the children or grandchildren of the grantee from sharing in the land.

In Banc. Error to Circuit Court, De Kalb County; Alonzo D. Burnes, Judge.

Action by Matthew W. Thomas against Nora E. Scott. Judgment for plaintiff, and defendant brings error. Affirmed.

For opinion denying motion to transfer cause to the Kansas City Court of Appeals, see 214 Mo. 430, 113 S. W. 1093.

Fitch & Blair, for plaintiff in error. Hewitt & Hewitt, for defendant in error.

LAMM, P. J.

Thomas held title to real estate under a warranty deed from F. Thomas Hainline. From a decree restoring a destroyed deed in his chain of title, defendant brings error. The action is under article 4, c. 59, Rev. St. 1899, chapter 59 being under the caption, "Testimony, Perpetuation of," and article 4 under the subtitle. "Establishing Land Titles." Ann. St. 1906, pp. 2472, 2480. Early in the history of the case here it was contended that the title to real estate was not involved, and that we had no jurisdiction. On a motion to transfer to the Kansas City Court of Appeals, that contention was disallowed in banc by an opinion handed down. Thomas v. Scott, 214 Mo. 430, 113 S. W. 1093. In that opinion a sufficient synopsis of the petition is given for our purpose (q. v.). It will do to say that the petition substantially complies with section 4565, Rev. St. 1899 (Ann. St. 1906, p. 2480), prescribing the averments requisite to a good pleading in the statutory action invoked. The controversy is over 37 acres of land in De Kalb county, viz., the N. W. ¼ of the S. E. ¼ of section 36, township 58, range 30. The deed alleged to be destroyed was an unrecorded quitclaim, of a date in March, 1896, from defendant and her then husband, Robert N. Hainline, to F. Thomas Hainline, the latter being, in turn, plaintiff's grantor under a warranty deed and defendant's then father-in-law. On lodging his petition in the office of the circuit clerk, publication was made as provided in section 4566 (Ann. St. 1906, p. 2481). Thereafter defendant (then named Hainline and widowed) entered her appearance, and afterwards remarried and filed answer. The scope and tenor of that answer may be found sufficiently stated in Thomas v. Scott, 214 Mo. 430, 113 S. W. 1093, supra. The testimony took a wide range. We shall not detail it. Certain admissions were made by the answer relating to the destroyed deed. Taking those, with the proofs put in, the following facts were established: On a certain day in March, 1896, the defendant Nora purchased the locus (with 80 acres of other land) at a foreclosure sale under a deed of trust executed by F. Thomas Hainline and took a trustee's deed. Presently (within two or three days) she and her then husband quit-claimed the 37 acres to him.

There is a question raised on the record on the delivery of the deed, but under the proof in the light of the allegations of the answer we think there is no question but there was delivery. There is also a question raised whether the deed expressed any consideration. The defendant testified there was none, and that the blank in the deed intended to be filled by a consideration was not filled at all. But there was satisfactory proof that the deed expressed a consideration of $1, and this phase of the case is not seriously argued in this court. F. Thomas Hainline was an old man—a widower. We take it the few acres in dispute is his whole estate. The proof tended to show that he has lived on the land for a generation or more, paying taxes under a claim of ownership, and at the time the deed was made was a member of defendant's family. Subsequently this family arrangement was ended—whether at peace or through infelicity is not clearly shown. It seems that, when the foreclosure was pending, a question arose whether he would borrow the money and pay off the mortgage debt, or allow the sale to go. The conclusion reached was to take the latter course. The value of all the land, as compared to the amount of the mortgage debt, is not disclosed; but we conclude, and the chancellor doubtless concluded, that the equity of F. Thomas Hainline was equal to the value of the 37 acres conveyed by the destroyed deed, and that the family arrangement contemplated that the daughter-in-law, Nora, should bid in all the lands covered by the deed of trust and quitclaim the locus to her father-in-law, and that in pursuance and consummation of that pre-existing understanding, the quitclaim was made. The testimony convinces us that the deed conveyed a fee-simple estate. Inferentially the answer admits so much, but it avers that came about through a mistake in the scrivener. There was faint testimony that after its execution the deed was sometimes referred to as a "lifetime deed." There is some testimony that grantors intended to convey a life estate only. But there is more persuasive testimony to the contrary. On top of that the conduct of the defendant in destroying the deed, more particularly set forth hereafter, speaks strongly against such theory, and a careful reading of the whole record shows there was no limitation on the estate conveyed, that Nora intended to convey the whole, and that her deed accomplished it. Before suit, and again after its inception, Nora tendered a quitclaim deed conveying a life estate to F. Thomas Hainline, which tenders he declined. It is agreed on all sides that the deed was destroyed by defendant at a date not definitely fixed, but towards the end of 1896, or in the spring of 1897. Other facts appear with points ruled.

1. The first husband of Nora, Robert N. Hainline, having died, she at the time of the trial had intermarried with one Scott, a widower whose first wife was a daughter of F. Thomas Hainline. When Nora was testifying, her counsel sought to prove by her that when the deed was handed by her to Robert, her husband, she, in the absence of the grantee, instructed her husband not to deliver it to the grantee, but to a third party. The testimony was excluded, exception was taken, and the ruling is assigned for error. That the wife or husband is a competent party to prove a contract constituting one the agent of the other is accepted doctrine. In this case, however, the husband was dead. The contract sought to be established related to the delivery of the deed. Under the circumstances the existence of the deed, not as a mere scroll, but as a deed, being at issue and on trial, and the husband dead, we greatly doubt whether she was competent to prove the contract with him. But the point may be reserved, because, as said, it is clearly shown aliunde that the deed was delivered, was...