West v. Witschner

• Decision Date: 17 July 1972
• Docket Number: No. 56301,No. 2,56301,2
• Parties: Theodore R. WEST and Grace Goode, Appellants, v. Ira K. WITSCHNER et al., Respondents
• Court: Missouri Supreme Court

Page 733

482 S.W.2d 733

Theodore R. WEST and Grace Goode, Appellants, v. Ira K. WITSCHNER et al., Respondents.

No. 56301.

Supreme Court of Missouri, Division No. 2.

July 17, 1972.

Claude L. Schenck, Blue Springs, for appellants.

Lynn B. Nelson, William H. Ergovich, Kasas City, for respondents.

HOUSER, Commissioner.

This is the second appeal in a four-count suit in equity against Ira K. Witschner and J. J. Filsinger and wife. In Count I Theodore West sought to set aside a deed. In Count II Grace Goode sought to set aside a decree in a partition action filed by Witschner against her. (Witschner's cause of action was based upon a chain of title one link of which was the deed questioned in Count I.) In Counts III and IV Grace Goode sought actual and punitive damages against Witschner. Following trial before the judge of Division 9 of the Circuit Court of Jackson County plaintiffs lost on all counts. They appealed to this Court. The evidence introduced at the original hearing was fully developed in the opinion written on that appeal, West v. Witschner, Mo.Sup., 428 S.W.2d 538, in which we upheld the trial court's finding on Count I that West failed to prove fraud on the part of Witschner's agent in procuring the deed, but reversed the judgment on Count I and remanded the cause for a new trial in order that the parties might fully develop evidence on the issue whether the deed was signed in blank and whether the Wests acknowledged the deed before the notary public whose name appears in the acknowledgment; upheld the trial court's finding on Count II that Witschner did not fraudulently procure the partition judgment and the Grace Goode's interest was not purchased for an inadequate consideration, but reversed the judgment on Count II and remanded the cause for a new trial for the same reason and purpose for the remand of Count I; affirmed the trial court's judgment on Counts III and IV, and ordered that the portions of the judgment affirmed be held in abeyance pending final disposition of the cause. On remand evidence pro and con was introduced on the two questions remaining in the case, i.e., whether the deed was signed in blank, and whether it was acknowledged. The court ruled that plaintiff West failed to establish that the deed was signed in blank but that it had been established by clear, cogent and convincing evidence that the Wests did not appear before a notary public to acknowledge execution of the deed; ordered that plaintiff West take nothing by his suit, except that the deed be stricken from the records of the recorder of deeds for want of a valid acknowledgment; and entered judgment that plaintiff Goode take nothing by Counts II, III and IV. Plaintiffs have appealed.

At the second trial William J. Pine and Betty Ann Wilson, both of whom were referred to in our original opinion, testified. Pine testified that he and Betty Ann Wilson went to the home of the Wests, at which place he prepared the deed, the geneology and the receipt, all in his own handwriting, all at the same time and in the presence of the Wests. He stated positively that the deed was complete in all respects and all of the blanks in the printed form were filled in by him, including names of grantees and legal description of the property, before it was signed. He testified that Betty Ann Wilson waited in the automobile, parked in front of the West house, until the papers were ready, at which time she was called into the house, introduced to the Wests, and that she then and there took the acknowledgment of West and his wife to the deed. After so testifying Pine changed his testimony and stated that he wrote the deed before he went to the West house. Then he expressed uncertainty about the matter. These changes and modifications of his testimony were made after it became evident to him that the deed was dated December 17 and the acknowledgment was dated December 18. When cross-examined about his positive testimony that the blanks were all filled in before signing he stated he couldn't remember, but that he assumed, and was sure, that this was so. When asked to explain the fact that the beginning words of the legal description ('An undivided one-half interest in the') were crowded in between two lines as if interlined, he could not tell for sure but suggested that he may have thought about its being a one-half interest and 'then put it in afterwards,' insisting however that these words wre inserted before the grantors signed the deed. He agreed that the consideration actually paid may have been $150. The receipt was for $200.

Betty Ann Wilson testified by deposition in 1966 that she had no recollection of having taken the acknowledgment of the Wests at their home, and did not know whether they appeared before her at her office or their home. At the second trial she appeared in person and testified positively to the contrary that she remembered going to 2438 College Street in an automobile with Mr. Pine; that she waited in the automobile; that Mr. Pine came out and got her when he was ready for the Wests to sign the deed; that she entered the house, was introduced to the Wests, who signed the deed before her, and that she took their acknowledgment at that time and place.

For plaintiffs Charlene Betty Alexander (formerly the wife of plaintiff West) testified positively at both trials that Pine came to their home alone; that no one was with him; that no one waited in the automobile; that the young lady she saw coming out of the courtroom after testifying (Betty Ann Wilson) was not at the West home that day, and that Charlene had never seen her. She reiterated her testimony given at the first trial that the warranty deed form was blank, except for the printed matter and her then husband's signature, when it was presented to her for signature. Plaintiffs offered to...