Wells v. Kuhn

• Decision Date: 10 April 1920
• Docket Number: No. 20824.,20824.
• Parties: WELLS et al. v. KUHN et al.
• Court: Missouri Supreme Court

221 S.W. 19

WELLS et al. v. KUHN et al.

No. 20824.

Supreme Court of Missouri, Division No. 1.

April 10, 1920.

Appeal from Circuit Court, Linn County; Fred Lamb, Judge.

Suit by Ella Wells and others against Martha A. Kuhn and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

E. B. Fields, of Browning, for appellants.

A. W. Mullins, of Linneus, C. C. Bigger, of Laclede, and H. J. West, of Brookfield, for respondents.

RAGLAND, C.

Suit in equity to set aside a deed and for partition. The plaintiffs are the collateral heirs of W. S. Goslin, deceased. The defendants are the widow and heirs of S. C. Kuhn, deceased. In 1901, Goslin, a widower, owned 135 acres of land in Linn county. On that date he conveyed it to Maggie Kuhn, his daughter, who was his only child and who was the wife of S. C. Kuhn. Goslin made his home with his daughter and her husband. In 1903, Maggie Kuhn died, intestate, and without issue. On September 21st, following her death, Goslin executed a quitclaim deed to Kuhn, her surviving husband, the granting and habendum clauses of which are as follows:

"* * * That the said party of the first part in consideration of the sum of one dollar and the further consideration hereinafter expressed, to him paid by the said party of the second part, the receipt of which is hereby acknowledged, does by those presents, remise and quitclaim for and during his natural life only, unto the said party of the second part, the following described lots, tracts or parcels of land. * * * In part consideration for the conveyance it is hereby stipulated and agreed that said S. C. Kuhn party of the second part, shall properly and comfortably support, maintain and care for said William S. Goslin during his lifetime, at his said S. C. Kuhn's own expense, and should said Goslin die before the death of said Kuhn, then said Kuhn is to furnish and provide proper and suitable funeral at his expense for the remains of said Goslin and should the said Kuhn die before the death of said Goslin, then at the death of said Kuhn the title to said land shall revert to and be fully vested in said William S. Goslin, but should said Goslin die before the death of said Kuhn, then at the death of said S. C. Kuhn, the title to said land at his death shall descend and vest in the heirs at law of said William S. Goslin.

"To have and to hold the same with all the rights, immunities, privileges and appurtenances thereto belonging unto the said party of the second part, for and during the natural life only of said S. C. Kuhn so that neither the said party of the first part nor his heirs nor any person or persons for him or in his name or behalf, shall or will hereafter claim or demand any right or title to the aforesaid premises or any part thereof, for and during the natural life of said S. C. Kuhn, but they and every of them shall by these presents be excluded for that time only."

On the 2d day of September, 1915, Goslin executed a warranty deed, purporting to convey the same land to Kuhn. It is in the usual form with the exception of a recital therein, which is as follows:

"In part consideration for this conveyance it is hereby stipulated and agreed that said S. C. Kuhn, party of the second part shall properly and comfortably support, maintain and care for said William S. Goslin, during his lifetime, at his, said S. C. Kuhn's own expense and at the death of the said William S. Goslin the said S. C. Kuhn shall furnish and provide proper and suitable funeral at his expense for the remains of said Goslin and shall also procure and erect a suitable tombstone or monument at the grave of said Goslin at the expense of him, said S. C. Kuhn.

"This deed of conveyance is made as a supplement to the deed executed by the said Goslin to the said Kuhn dated September 21, 1903, for the purpose of fully vesting the title to the said land in the said S. C. Kuhn."

This last deed is the one sought to be set aside. Goslin died December 14, 1915, and Kuhn on March 29, 1916.

Kuhn married again within two or three years after the death of his first wife, Maggie, but Goslin continued to live with him the remainder of his life. He was treated kindly and considerately by Kuhn and his last wife; he was happy and contented in their home, which they made his home as well; and he had, apparently, the same affectionate regard for Kuhn as he would have had, had he been his own son. All his life he had been regarded as a rather frail man physically, and this condition was more pronounced during the latter part; but up to the time of his death in his eighty-fourth year he was able to travel around in his community with a horse and buggy unattended. He was a man of average intellect and education, and there had been no impairment of his mind, except the loss of vigor usual in extreme old age. Until his death he continued to personally transact whatever business he had. With reference to the cordial, even affectionate, relation existing between Kuhn and Goslin, and the mental and physical condition of the latter up to the time of his death, the evidence runs all one way.

The petition alleges that the plaintiffs are the owners of one undivided half of the land in...