Turner v. Mallernee

• Decision Date: 28 September 1982
• Docket Number: 12438,Nos. 12429,s. 12429
• Citation: 640 S.W.2d 517
• Parties: Harold TURNER and Mildred Turner, Plaintiffs-Appellants-Respondents, v. Roy MALLERNEE and Thelma Mallernee, Defendants-Appellants-Respondents.
• Court: Missouri Court of Appeals

Page 517

640 S.W.2d 517

Harold TURNER and Mildred Turner, Plaintiffs-Appellants-Respondents, v. Roy MALLERNEE and Thelma Mallernee, Defendants-Appellants-Respondents.

Nos. 12429, 12438.

Missouri Court of Appeals,

Southern District,

Division One.

Sept. 28, 1982.

Motion for Rehearing and to Transfer

to Supreme Court Denied

Oct. 13, 1982.

Application to Transfer Denied

Nov. 15, 1982.

Gary A. Love, Mark E. Fitzsimmons, Love & Doran, Springfield, for defendants-appellants-respondents.

Harold J. Fisher, Lynn C. Rodgers, Woolsey, Fisher, Whiteaker, McDonald & Ansley, Springfield, for plaintiffs-appellants-respondents.

FLANIGAN, Presiding Judge.

This is an action to quiet title to a 160-acre farm located in Douglas County. Plaintiffs are Harold Turner and Mildred Turner, his wife, and defendants are Roy Mallernee and Thelma Mallernee, his wife. Mildred and Roy are the children of Arthur Mallernee, who died on November 6, 1978. The parties base their respective claims of title on two competing deeds to the land, each signed and acknowledged by Arthur as grantor. In November 1975 Arthur signed a deed which named plaintiffs as grantees. The 1975 deed was never recorded. On October 3, 1978, Arthur signed a deed which named defendants as grantees. The 1975 deed was never recorded. On October 3, 1978, Arthur signed a deed which named defendants as grantees. That deed was promptly recorded.

The petition was in three counts. Count I sought to establish title in plaintiffs based on the 1975 deed. Count II sought a decree invalidating the 1978 deed on the grounds that Arthur was incompetent at the time it was executed and that defendant Roy had exercised undue influence on Arthur with respect to its execution. Count III sought an order "impressing a constructive trust upon defendants" and "compelling defendants to convey the land to plaintiffs."

Sitting without a jury, the trial court found in favor of defendants on Counts I and III and in favor of plaintiffs on Count II. The trial court found that the 1975 deed was ineffective for lack of delivery. The trial court also found that the 1978 deed was ineffective because of undue influence exerted by Roy and lack of the grantor's competence. Both sides have appealed.

Although defendants have challenged the ruling on Count II, the evidence of both sides with respect to that count, including testimony from defendant Roy himself, overwhelmingly demonstrated that undue influence was exercised by Roy and that Arthur was incompetent to execute the 1978 deed. It would serve no precedential purpose to recount the evidence pertinent to Count II. The appeal by defendants has no merit.

The dispositive issue is whether the 1975 deed was delivered. The parties agree that Arthur owned the farm prior to the execution of the 1975 deed, that Arthur was competent when the 1975 deed was executed, and that the 1975 deed was not tainted by undue influence.

"A deed, to be operative as a transfer of the ownership of land, or of an interest or estate therein, must be delivered; its delivery gives the instrument force and effect.... 'Delivery' signifies that all dominion and control over the deed is passed from the grantor to the grantee, or to someone for him, with the intention of presently transferring the ownership of land, or an interest or estate therein.... A manual delivery of a deed is not conclusive proof of a delivery, since the transfer of the dominion and control over the deed must be unhampered with the reservation of any right of revocation or recall and must be with the intent to presently pass title." Klatt v. Wolff, 173 S.W.2d 933, 936[3-5] (Mo.1943). (Citing authorities.)

"Whether or not a deed has been delivered is a mixed question of law and fact. The element which controls the resolution of that question is the intention of the parties, especially the intention of the grantor. The vital inquiry is whether the grantor intended a complete transfer--whether the grantor parted with dominion over the instrument with the intention of relinquishing all dominion over it and of making it presently operative as a conveyance of the title to the land." Meadows v. Brich, 606 S.W.2d 258, 260 (Mo.App.1980). (Emphasis in original.)

" 'On the question of whether, in a given case, there has been a delivery the intention of the grantor is the controlling element.' ... Dallas v. McNutt, 297 Mo. 535, 249 S.W. 35, 36." Haer v. Christmas, 312 S.W.2d 66, 68 (Mo.1958). The intent to deliver may be manifested by words or acts or both. Ragan v. Ragan, 445 S.W.2d 825, 826 (Mo.1969). "[T]he fact of a manual delivery to and the possession of a deed by the grantee is a circumstance to be taken into account in attempting to determine whether the grantor intended to pass a present estate or interest." Wheeler v. Rines, 375 S.W.2d 48, 50-51 (Mo.1964). If a valid delivery has taken place it is not rendered ineffectual by the act of the grantee in placing the deed in the custody of someone for safekeeping, even if the custodian is the grantor. Shroyer v. Shroyer, 425 S.W.2d 214, 220 (Mo.1968).

"The question of whether there was a legal 'delivery' depends on the peculiar facts of each case ... and all the relevant facts and circumstances shown in evidence should be considered in determining this question...." Carr v. Lincoln, 293 S.W.2d 396, 401 (Mo.1956). "Plaintiffs had the burden of establishing their claim of title which was dependent on an alleged conveyance to them. The delivery of the conveyance was disputed. A party claiming title under a deed is bound to prove its delivery because delivery is essential to a deed's validity." Reasor v. Marshall, 359 Mo. 130, 142, 221 S.W.2d 111, 116[11, 12] (1949). To similar effect see Meadows v. Brich, supra, at 260.

There is little, if any, dispute with regard to the facts on which hinges the issue of delivery or non-delivery of the 1975 deed. Several years prior to November 1975 Arthur had conveyed another 160-acre farm, adjacent to the one here in dispute, to Roy. Arthur had stated on several previous occasions that he intended for the disputed farm "to be Mildred's."

In November 1975 plaintiffs Harold and Mildred drove to the farm where Arthur was then living alone. There they met Arthur and Roy, who lived on the adjacent farm, and the four people went to the office of attorney Daniel Wade in Ava, Missouri. During the "15 to 30 minutes" they were at Wade's office, Wade prepared a deed to the land, using a description the four laymen had first obtained at the recorder's office. In the presence of attorney Wade and his three companions, Arthur signed and acknowledged the deed which contained a description of the farm and named the plaintiffs as grantees. After Wade had "notarized" the deed, Wade placed it in an envelope and gave it to grantee Mildred in the presence of the other people, including Arthur. It is a reasonable, if not inescapable, inference from the evidence that Wade's act of handing the deed to Mildred was done with the knowledge and consent of Arthur.

Although Harold, Mildred and Roy all testified at the trial, there was no testimony concerning any specific statement made by Arthur during the conference in the attorney's office or indeed on that day.

After Mildred was in physical possession of the deed, Roy suggested to Mildred that the deed be left with Roy to be put by him in a safety deposit box. Mildred agreed and handed the deed to Roy. Mildred and Roy decided that the deed would not be recorded. Mildred testified that Roy "was supposed to keep the deed in a lock box and the deed was supposed to be returned" to her at Arthur's death.

Neither of the grantees, Harold and Mildred, saw the deed again. Roy testified that he placed the deed in his, Roy's, safety deposit box, to which Arthur had no access. Indeed it was Roy's testimony that Arthur did not know where the deed was. In 1978 Roy burned the 1975 deed shortly before Arthur's death and after the execution of the defective 1978 deed. Mildred did not learn of the destruction of the 1975 deed nor the existence of the 1978 deed until three weeks after Arthur's funeral.

On cross-examination by defense counsel, Harold testified that attorney Wade made the statement "that if [Arthur] trusted [Mildred] that she could always reconvey the property." There was conversation between Mildred and Roy that Arthur "might need the property--not that he would need it--if he got badly sick, that he would need to borrow against it."

Mildred testified that "the purpose in Roy having the deed was in case Dad did have some kind of sickness or had a need of borrowing money against the place" but "that was never necessary." Mildred also testified that attorney Wade told her "if Arthur ever really needed it, you could convey it back." Mildred admitted that on her deposition she had given an affirmative answer to the question, "So you realized your father still had control of the property?" Explaining her foregoing answer the witness said, "I realized he could borrow money on the property if he needed to before his death. But it was also understood I was to receive the deed at my father's death. It was to be recorded."

Roy testified that the decision not to record the deed was made by Mildred and Roy and that decision had been made "without talking to Dad." Roy said, "My intentions at that time [were] to bring the deed back at Dad's passing away." Asked whether Arthur had instructed the witness on what to do with the deed, Roy replied, "I don't know as he really said."

In November 1975, when the events in the attorney's office occurred, plaintiffs Harold and Mildred were in the process of moving to Arkansas where Harold was employed. Arthur continued to live alone on the farm for a few months, but his health failed and thereafter he made his home with Roy except for the last summer of his life which he spent with the plaintiffs in Arkansas. The plaintiffs did not occupy the farm or make...