Whiteley v. Babcock

Decision Date29 March 1917
Docket NumberNo. 17909.,17909.
Citation202 S.W. 1091
PartiesWHITELEY et al. v. [PG BABCOCK et al.
CourtMissouri Supreme Court

Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge.

Bill by William A. Whiteley and others against Charles W. Babcock and others. Decree for defendants, and plaintiffs appeal. Affirmed.

This is a bill in equity, brought by the plaintiffs, in the circuit court of Jackson county, against the defendants, seeking to have two certain trust deeds described in the bill set aside and canceled as casting clouds upon the title to the real estate therein described, an interest in which it is charged belong to them for the reason that said deeds were never delivered to the grantees therein named. The trial resulted in a decree for the defendants, and the plaintiffs duly appealed the cause to this court.

While it is true the bill asks for a cancellation of the deeds, yet the sole question of fact involved is whether or not the deeds were delivered to the defendants. Since that is the vital question in the case, and my Associates in Division No. 1 having entertained different views regarding that question, it becomes necessary for me to set out the substance of the evidence, voluminous as it is, bearing upon that question, in order to ascertain whether or not the decree of the circuit court was proper.

The pleadings are unusually long, covering 38 printed pages, but their sufficiency to present the questions hereinafter mentioned is not challenged; consequently they are put aside.

The first of the deeds introduced in evidence by the plaintiff reads as follows:

Warranty Deed—Register's Form—2207.

This deed, made this fourth day of November, in the year of our Lord one thousand nine hundred and three, between Abner Whiteley, of Leavenworth, Kansas, party of the first part, and Charles W. Babcock, of Platte county, state of Missouri, Harold E. Whiteley, Franklin E. Whiteley, Phineus Irene Whiteley, and Frankie Whiteley, of Jackson county, state of Missouri, parties of the second part, witnesseth that the said party of the first part, for and consideration of the sum of one dollar and other good and valuable considerations to him in hand paid by the said parties of the second part, the receipt whereof is hereby confessed and acknowledged, does by these presents grant, bargain, sell, remise, release, alien, convey, and confirm unto the said parties of the second part, and to their heirs and assigns forever, all of the following described tracts, pieces, and parcels of land situate, lying, and being in the county of Jackson and state of Missouri, to wit: The west half (W. ½) of section six (6), township forty-seven (47) of range thirty-two (32) and the east half (E. ½) of section one (1) of township forty-seven (47) of range thirty-three (33), upon the terms and conditions following: Charles W. Babcock, as trustee for Harold E. Whiteley, Franklin E. Whiteley and Phineus Irene Whiteley and Frankie Whiteley, but no division or partition of said land, premises, or any part thereof shall be made by partition or otherwise until the youngest child of said Harold E., Franklin E., Phineus Irene, and Frankie Whiteley shall become of age, and the said Charles W. Babcock, as trustee, for use of said parties, shall rent said land to other parties or use it himself, at the usual rents of the country, and shall collect the rents, and pay the taxes, and make the necessary improvements and repairs, and pay for them out of the rents, and deduct from the remainder a reasonable amount for his services, and the balance of rents to be paid to the guardian of the said four (4) children in equal parts, until they become of age, and then to them in person, said payments to be made on first day of January of each year, together with all and singular, the tenements, hereditaments, and appurtenances thereunto belonging, or in any wise appertaining.

To have and to hold the said premises the tracts of land aforesaid, with the hereditaments and appurtenances thereof, unto the said parties of the second part, their heirs, and assigns forever. And the said Abner Whiteley, for himself and his heirs, does hereby covenant, undertake, and promise to and with the said parties of the second part, their heirs and assigns, that he is lawfully seised of the premises, the tracts of land aforesaid, in fee simple absolute, and has good right and title to sell and convey the same according to the tenor and effect hereof, and that the said premises, the lands aforesaid, are free and clear of and from all and any incumbrances whatsoever, and that he will forever warrant and defend the same, the tracts of land aforesaid, with the appurtenances thereof, unto the said parties of the second part, their heirs and assigns forever, against all and any lawful claim of all and any person whomsoever. In testimony whereof the said party of the first part has hereunto set his land and seal the day and year first above written.

                  [Signed]          Abner Whiteley.  [Seal.]
                

This deed was duly acknowledged on November 4, 1903, and recorded July 3, 1908. The second deed mentioned and introduced in evidence is an exact copy of the first, with the exception that in the trust clause thereof, just after the words "and make the necessary improvements and repairs," are inserted the following words:

"And if any of the buildings on said premises shall be destroyed by fire or storm said Babcock is to replace them."

As before stated, the second deed is identical with the first, with the exception of the addition of the words mentioned. The second deed was in fact executed about one year and six months after the execution of the first, although purporting upon its face to have been executed on the same day. Both deeds were filed for record at the same time.

The second deed was executed at the suggestion of one Bishop, a witness in the case, who transcribed them from another deed of similar character drawn by Senator Lucien Baker, of Leavenworth, Kan., executed by Abner Whiteley conveying other lands to other persons.

The Plaintiffs' Evidence.

Wm. A. Bishop testified on behalf of the plaintiffs substantially as follows:

That he had lived in Leavenworth 35 years, and had known Abner Whiteley ever since he was a boy; that he had drawn deeds and other documents for Mr. Whiteley, extending over a period of 15 or 16 years; that he was employed by David Atchison to sell coal, and sometimes delivered it; that he wrote the two deeds before mentioned and read in evidence; that he suggested to Mr. Whiteley that the first deed made to Mr. Babcock did not make provision for the rebuilding of the houses on the premises in case they were destroyed by fire or storm, and upon that suggestion Mr. Whiteley executed the second deed before mentioned, which only differed from the first by the insertion of the clause heretofore mentioned; that a couple or three weeks after the second deed was made Mr. Whiteley "told me he had delivered the deeds to Mr. Babcock with the understanding, or a contract, or an agreement they had between themselves that they should not be recorded until after his death, and then I turned right around to him, and I says, `Mr. Whiteley,' I says, `How the deuce does it come you would give Mr. Babcock the deeds and would not give Gertie Watson or the other children deeds I had written for you before?' He said, `William, Babcock is an honest man, and I know what I am doing; I have had dealings with him too many years to be mistaken in my man.' Abner Whiteley told me time and time again that when he died he wanted all of his deeds to go into effect, because I told him lots of times; I begged and talked and pleaded with him the same as I would a father. I would be out with him lots and lots of time looking over his land, and I says, `Mr. Whiteley, why don't you divide this up and give it to your children?' He says, `Plague on it, some of them don't know how to take care of it; I want to keep my hands on it, until I can't stay here any longer; until the powers that be call me away.' * * * Abner Whiteley told me after he signed and acknowledged Exhibits 1 and 2, the deeds in question, that those deeds would go into effect at the time of his death. All of his deeds would go into effect at the time of his death. Not to one piece of property but to all the property he owned."

Cross-examination:

"Q. Did or did not he [Abner Whiteley] tell you that he handed those deeds or was going to give them to Mr. Babcock? A. He told me, Mr. Harding, when I wrote that second deed, if you see there it is dated the same as the first one, is it not? Q. Yes? A. Well, that was his intention, you see; he didn't tell me anything about delivering the first one, I don't believe, at that time; but after he had delivered the other one and had come back from Mr. Babcock's, and we were talking about the matter, he says, `I feel relieved.' I says, `I am glad of it; what has happened?' `Well,' he says, `I delivered the deeds to Mr. Babcock, and I consider that deed recorded to-day, but I have an understanding with Mr. Babcock that it is not to go into effect until after my death.' Q. Now, let me see, Mr. Bishop, did you understand the matter of the rents, that is to say, that he was to get the rents until his death, and at his death the rents were to go to the people mentioned in the deed? Was that what you gathered from him? A. Yes, sir; that is what I knowed to be a fact. Q. That is what he told You, wasn't it? A. Yes, sir. Q. Isn't it a fact then, Mr. Bishop, boiling this whole matter down, that he told you he had deeded, that he had delivered those deeds to Mr. Babcock, and they are just as good as recorded? A. Yes. Q. I am going to get the rent during my lifetime, and at my death the rents are to go to the children. Isn't that what he said? A. That is correct. I heard Abner Whiteley say he had purchased the farm Babcock is on for ...

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