Wilcox v. Coons

• Decision Date: 09 May 1949
• Docket Number: 41082
• Parties: Henderson Wilcox and Ray Truesdell, Respondents, v. Lawrence Coons and Otis Temple, Appellants
• Court: Missouri Supreme Court

220 S.W.2d 15

359 Mo. 52

Henderson Wilcox and Ray Truesdell, Respondents, v. Lawrence Coons and Otis Temple, Appellants

No. 41082

Supreme Court of Missouri

May 9, 1949

Appeal from Audrain Circuit Court; Hon. Frank Hollingsworth, Judge.

Reversed and remanded.

SYLLABUS

In an action to quiet title and in ejectment plaintiffs relied on a deed recorded after the grantor's death and defendants claimed under two subsequent wills executed by the grantor. The evidence of an attorney who prepared the deed was admissible, and the acknowledged deed was also admissible and created a presumption of delivery. But it was error to direct a verdict in favor of plaintiffs, as defendants offered strong evidence to rebut plaintiffs' prima facie case. Title recitals in an insurance policy and evidence as to the mental capacity of the testator were admissible.

Charles M. Miller for appellants.

(1) Sec. 3435, R.S. Mo., 1939, as construed by this Court in Barbee v. Farmers Bank, 240 Mo. 297, 144 S.W. 839 should not be held to make a prima facie case of the making of the alleged deed and delivery, in the light of the evidence in this case pertaining to the alleged deed, nearly 9 years old, and recorded over 3 months after grantor Collins' death. Pocahontas Fuel Co. v. Dillion, 161 Va. 301, 170 S.E. 616; 26 C.J.S., pp. 600, 601; Lorson v. Taylor, 83 Colo. 430, 266 P. 217; French v. Dillon, 120 W.Va. 268, 197 S.E. 725; Wanta v. Potrykus, 207 Wis. 282, 240 N.W. 183; Little v. Eaton, 267 Ill. 623, 108 N.E. 727. (2) The burden of proving a deed is upon the party asserting a deed, and a deed must be properly made and delivered before the death of the grantor to be effective as a valid deed. Peremptory instruction held not authorized. Tyler v. Hall, 106 Mo. 313, 17 S.W. 319. (3) Coles v. Belford, 289 Mo. 97, 232 S.W. 728, holds that retention of possession of property by grantor, renting the same and paying taxes and making repairs warrants cancellation of deed on ground of no delivery by grantor before death. To the same effect see also Truttmann v. Truttmann, 328 Ill. 338, 159 N.E. 775; Nofftz v. Nofftz, 290 Ill. 36, 124 N.E. 838. (4) Delivery is essential to complete execution of a deed and without showing delivery execution is not shown. Johnson v. Fulk, 282 Ill. 328, 118 N.E. 708. (5) Plaintiffs made no prima facie case, and at most a prima facie case only means sufficient to justify submission to a jury for determination. McDaniel v. Atlantic C. & R. Co., 190 N.C. 474, 130 S.E. 208. 9 Wigmore on Evidence (3rd Ed.), sec. 2494, p. 293. (6) Further, any presumption, if applicable to aid plaintiffs, was only procedural and disappears when substantial controverting evidence is adduced. Kellogg v. Murphy, 249 Mo. 1165, 167 S.W.2d 285. (7) The trial court erred in admitting by deposition testimony of plaintiffs' witness Lawyer Gutekunst relating to what was said by Collins while Gutekunst was acting as Collins' lawyer because a confidential communication, and also because under Section 1895, R.S. 1939, Gutekunst was an incompetent witness. (8) The trial court erred in admitting the alleged deed in evidence on the testimony offered by the plaintiffs. Johnson v. Fulk, 282 Ill. 328, 118 N.E. 708; Lorson v. Taylor, 83 Colo. 430, 266 P. 217; Wanta v. Potrykus, 207 Wis. 282, 240 N.W. 183. (9) The trial court erred in admitting in evidence on behalf of plaintiffs testimony of the mental and physical condition of R. C. Collins in 1944 and at the times the wills were made. Such was not under the pleadings an issue in the case. Plaintiffs' petition proceeded upon the theory of the validity of the will. (10) The trial court erred in refusing to admit in evidence on behalf of defendants exhibit 13 being the fire and cyclone insurance policy taken out by R. C. Collins in his name on the property in question and refusing to permit counsel to read the same to the jury or tender the same to the jury for inspection. Coles v. Bedford, 289 Mo. 97, 232 S.W. 728.

C. M. Hulen for respondents.

(1) The trial court did not err in admitting the deposition of witness Gutekunst. It is admitted that R. C. Collins, deceased, was the common source of title. Canty v. Halpin, 241 S.W. 94, 294 Mo. 96; Clark v. Skinner, 70 S.W.2d 1094; Burgdorf v. Keeven, 174 S.W.2d 816. (2) The trial court did not err in admitting the deed in evidence. Keener v. Williams, 271 S.W. 489; State v. Page, 58 S.W.2d 293; Barbee v. Farmers Bank of Polo, 240 Mo. 297; Sec. 3435, R.S. 1939. (3) The trial court did not err in giving respondents' motion for a directed verdict on each count of the petition. The proof of execution and recording of the deed makes a prima facie case of delivery and acceptance. (4) The mere execution of wills after the date of the execution of the deed is not evidence of nondelivery of the deed. (5) The burden of the proof rests upon one who asserts the invalidity of a deed for nondelivery. Zumwalt v. Forbis, 163 S.W.2d 574; Barbee v. Farmers Bank, 144 S.W. 839, 240 Mo. 297; Burk v. Pence, 206 Mo. 315; Galloway v. Galloway, 169 S.W.2d 888; Macfarland v. Brown, 193 S.W. 800; Blackiston v. Russell, 44 S.W.2d 22. (6) If plaintiffs were the record owners of the legal title, the burden was upon the defendants to establish title in themselves. Failing so to do, the court properly sustained the motions. Whitworth v. Barnes, 165 S.W. 992.

Ellison, J. Clark, Douglas, Hyde, JJ., and Leedy, C.J., concur, Tipton and Conkling, JJ., concur in result.

OPINION

ELLISON

This suit involves the title to 220 acres of farm land in Randolph County worth more than $ 7500. Appellate jurisdiction therefore is in this court for two reasons: Art. V, Sec. 3, Const. Mo. 1945. On change of venue the cause was tried to a jury in Audrain County, and was heard on a fourth amended petition in two counts: the first being an action to determine title; and the second, in ejectment.

The plaintiffs-respondents and the defendant-appellant Otis Temple, both claim title to the land, the former under a deed duly acknowledged on its face, and the latter under subsequent wills, all executed by the same former owner. The defendant Coons was Temple's tenant on the farm. There was no direct proof of the delivery of the deed to the respondents. They rely on the statutory presumption of delivery raised by Sec. 3435. ^[1] The trial court mandatorily instructed the jury to find for the respondents on both counts of the petition, except as to the damages for appellants' detention of the land.

The appellants' assignments are that the trial court erred: (1) in thus mandatorily instructing for respondents [which is the main point in the case] and should have directed a verdict for appellants; (2) in admitting the testimony of the scrivener of the deed, who was a lawyer, on the theory that the communications between him and the grantor were privileged and inadmissible under Sec. 1895; (3) in admitting the deed in evidence because the undisputed proof showed it was executed almost nine years before the grantor's death; (4) in admitting testimony as to the grantor's physical condition when he made the subsequent wills; (5) in excluding appellants' offer of an insurance policy covering buildings on the farm, which the grantor had taken out subsequent to the execution of the deed, on the theory that it tended to show the grantor claimed to own the land despite the prior deed.

The common source of title was Robert C. Collins, a bachelor 81 years old when he died in Randolph County on January 10, 1947. Almost exactly nine years before his death he executed the challenged warranty deed on January 11, 1938, conveying the farm to respondents, Wilcox and Truesdell, who were strangers in blood. The expressed consideration therein was "One Dollar and other valuable considerations." The scrivener, Mr. Emil F. Gutekunst, a lawyer in Randolph County, testified Collins came to his office (alone, apparently) and asked him to prepare the deed. He said Collins "told me what he wanted, which I did. That's about all. He knew what he wanted when he came in the office." After the deed was written Collins signed and acknowledged it before the scrivener, and the latter added his certificate of acknowledgment and seal, as a Notary Public, with the date of expiration of his commission, which was after the date of the acknowledgment. He then delivered the instrument to Collins, who paid for the service and left taking it with him. On cross-examination the scrivener was asked "in drawing that deed you acted as his attorney," and he answered, "Presume that's correct."

There is no direct evidence showing what Collins did with the deed or whether he ever delivered it to the respondents named therein as grantees. They did not testify or attempt to do so. Whether this was because they considered themselves incompetent as witnesses under the dead man's statute, Sec. 1887, the record does not disclose. The only evidence on that point is the testimony of the recorder of deeds, the records of his office, and the indorsements on the deed itself. From these it appeared that the deed was filed for record on April 16, 1947, at 8:02 A.M., which was 3 months, 6 days after the grantor's death and 9 years, 3 months, 5 days after its execution. The records did not show who presented the deed for filing. The recorder retained possession of it for one year under Sec. 13178, because it had been signed and acknowledged more than a year before it was presented for record. The only other evidence presented by respondents consisted of certain "admissions against interest" made by the appellant Coons in his deposition taken by respondents. These were admitted against Coons only, and were to the effect that he knew the grantor Collins during his lifetime; and that he had leased parts of...