Thorp v. Daniel

• Decision Date: 12 November 1936
• Docket Number: No. 34174.,34174.
• Citation: 99 S.W.2d 42
• Parties: HOMER L. THORP, Appellant, v. WALTER DANIEL ET AL.
• Court: Missouri Supreme Court

99 S.W.2d 42

HOMER L. THORP, Appellant, v. WALTER DANIEL ET AL.

No. 34174.

Supreme Court of Missouri.

Division One, November 12, 1936.

Appeal from Shelby Circuit Court. — Hon. V.L. Drain, Judge.

REVERSED AND REMANDED (with directions).

Lane B. Henderson and Harry J. Libby for appellant.

Where the terms of the deed show that the interest of the grantor was not to pass a present irrevocable interest in the property to the grantee, then the conveyance is testamentary in character, and lacking the formal requisites necessary to make it a will, it is ineffectual and void. Kanan v. Hogan, 270 S.W. 646, 307 Mo. 269; Hohenstreet v. Segelhorst, 227 S.W. 80, 285 Mo. 507; Goodale v. Evans, 172 S.W. 370, 263 Mo. 219; Terry v. Glover, 139 S.W. 337, 235 Mo. 544; Givans v. Ott, 121 S.W. 23, 222 Mo. 395; Aldridge v. Aldridge, 101 S.W. 42, 202 Mo. 565; Griffen v. McIntosh, 758 S.W. 677, 176 Mo. 392; Murphy v. Gabbert, 66 S.W. 536, 166 Mo. 596; Turner v. Scott, 51 Pa. 126; Pinkham v. Pinkham, 55 Neb. 729.

H.A. Wright for Grover C. Bunn; W.L. Hamrick, Guardian ad litem for Bernie C. Bunn.

While respondents assign error of the court in trying an issue calling in question the validity of the deed of Elizabeth C. Bunn (the bone of contention in this and former suits) the ultimate results of those trials being favorable to respondents, they do not desire to occupy this court's time in consideration of the court's error further than to raise the matter of res adjudicata. Melvin v. Hoffman, 290 Mo. 464. This principle is so elementary that we do not desire to cite further authorities. The real issue in this case is the effect of the sheriff's deed designated by plaintiff as his Exhibit A which respondents maintain to have been held, by the court nisi, and asked to be held by this court as a nullity for the following reasons: All sheriff's deeds for a sale after levy under an execution are dependent for their validity upon a valid judgment having been rendered in the case by a court having proper jurisdiction, and an execution sued out at the request of a judgment creditor. Respondents contend that the execution in this case on which the levy and sale was made had no judgment whatever to support it and in support thereof submit the following record evidence of which the court should have taken judicial notice when he rendered his decree in this case holding valid the sheriff's deed upon which plaintiff depends. Record Evidence: Circuit Court Record 33, page 476. Case 10930, Bunn v. Daniel, October 14, 1932. Now on this day it is ordered by the court that this cause be and the same is hereby dismissed for lack of prosecution at the cost of the plaintiff herein. March 31, 1933: "Now on this day it is ordered by the court that an execution for costs issue herein directed to the sheriff of Shelby County, Mo., which said execution is accordingly issued and delivered to said sheriff." In obedience to said execution the then sheriff of Shelby County, Mo., made a levy upon the land in suit, advertised the same for sale, sold the same and made the deed, the validity of which the respondents question for the reason that the execution, sale and deed following were not sued out by any party to the suit having authority to have said execution issued. Beedle v. Mead, 81 Mo. 297; Hoover v. Mo. Pac. Ry. Co., 115 Mo. 77; Farris v. Smithpeter, 180 Mo. App. 466, 166 S.W. 655.

HYDE, C.

This is an action to determine title to 156 acres of land in Shelby County, and with a count for partition thereof in accordance with plaintiff's claim of title. Plaintiff claimed an undivided one-fifth in fee under sheriff's execution deed, conveying to him the interest of Grover C. Bunn. Defendants claimed that the sheriff's deed was invalid and that plaintiff had no interest in the land. On plaintiff's first count the court found that the sheriff's deed was valid, but that the title obtained by plaintiff thereunder was a life estate only, and, therefore, dismissed plaintiff's second count for partition. From the judgment entered in accordance with those findings, plaintiff has appealed.

No oral evidence was offered at the trial. It was admitted "that Elizabeth Bunn, prior to and on July 6, 1903, was the owner in fee of the real estate in controversy and is the common source of title to all the parties; ... that Elizabeth Bunn died intestate March 14, 1904;" that five children survived her, namely: "Mary A. Bunn, who later married Logan Daniel; Emma Bunn, who later married Frank Daniel; Joseph Bunn; Grover C. Bunn; Magdalena Bunn, also known as Maggie D. Bunn, who later married Oliver Brewer; and that said Elizabeth Bunn left no other children or the descendants of children surviving her." It was also admitted that Mary A. Daniel died in 1920 survived by two children; that Magdalena Brewer had three known children but it was not known whether she was living or dead; that Emma Daniel was still living and had three children; that Joseph Bunn was still living and had six children; and that Grover C. Bunn was still living and had one child. All of these grandchildren of Elizabeth Bunn were made parties regardless of whether their parents were living or dead.

On July 6, 1903, Elizabeth Bunn as party of the first part made a deed to George C. Bunn as party of the second part (intended to be Grover C. Bunn) "in consideration of natural love and affection," in the form of a statutory warranty deed, which described the land in question, but which contained the following conditions: "Reserving however to the party of the first part a life interest in the above described land. It being the intention that this deed shall not take effect till the death of the party of the first part. The party of the first part further stipulates that in case the party of the second part shall die without children that the land herein described shall pass by this deed to the grandchildren equally of the party of the first part." The deed also stated that the grantor "does by these presents Grant, Bargain and Sell, Convey and Confirm unto the said party of the second part and the children of his body."

This deed was filed for record, August 15, 1903. Grover C. Bunn, in May, 1927, commenced a suit to partition this land. An "interlocutory decree under date of July 9, 1927," was entered, which ordered sale, and a sale was made in March, 1928. This sale was not confirmed but was afterwards set aside. Again on December 3, 1928, "an interlocutory decree to partition the real estate" was entered. Later, in October, 1929, another sale was made but it was also set aside, and, in October, 1932, the partition suit was dismissed "for lack of prosecution, at the cost of the plaintiff." In March, 1933, it was "ordered by the court that an execution for costs issue." Pursuant to this order an execution was issued "directed to the Sheriff of Shelby County, Missouri, which recited a judgment in favor of Harry Daniel et al. and against Grover C. Bunn, rendered by the Circuit Court of Shelby County, Missouri, on the 14th day of October, 1932, in the sum of One Hundred Thirty-five and 35-100 ($135.35) Dollars, Cause No. 10390, Grover C. Bunn, Plaintiff, and Harry Daniel et al., Defendants, which said execution commanded the Sheriff to make the judgment and costs out of the goods, chattels, and real estate, of the said Grover C. Bunn." The sheriff's return showing levy and sale, and his recorded notice of levy upon real estate were also in evidence. Plaintiff also offered "the consolidated back tax book for Shelby County, Missouri, Page 39, showing back taxes on the land in controversy herein for the years of 1927, 1928, 1929, 1930, 1931 and 1932 in the sum of Nine Hundred Sixty-eight and 27-100 ($968.27) Dollars." It was also admitted by the parties "that at the time of the sale of the land in controversy herein under execution, that Grover C. Bunn was not living upon the described land as a homestead but was then living and making his home in Springdale, Washington." Plaintiff also put in evidence the sheriff's execution deed to him, which was in regular form; stated "judgment was rendered" against Grover C. Bunn October 14, 1932, "for $135.35 for costs and charges" in the Daniel case; showed execution issued and proper notice at sale; recited compliance with statutory requirements; and was duly acknowledged in open court. Defendant offered only the pleadings and court records in the former partition suit brought by Grover C. Bunn.

[1] The court's decree herein found as to the deed of Elizabeth Bunn "that said deed is a valid and subsisting deed, and that the same passed a valid and irrevocable title by the terms thereof to Grover C. Bunn for and during his natural life, and at his death to the children of his body, and if he dies without issue then said deed passed title to the grandchildren of Elizabeth Bunn share and share alike, and that said deed is not testamentary in character." It is plaintiff's contention that this finding is wrong; that this deed was testamentary in character; and that this deed was void for that reason. We think this contention must be sustained. "One of the important distinctions between a deed and an instrument testamentary in character is that in a deed a present estate or interest is passed, while in an instrument testamentary in character no part of the title treated is to pass until the death of the grantor. Whenever the instrument discloses the grantor's intention to be that no estate or interest is to pass until the death of the grantor, then it is considered to be testamentary in character, and comes within the rule governing the passing of title by will; and if not executed...