Wilcox v. Coons
| Decision Date | 09 July 1951 |
| Docket Number | No. 41931,41931 |
| Parties | WILCOX et al. v. COONS et al. |
| Court | Missouri Supreme Court |
Charles M. Miller, Kansas City, for appellants.
C. M. Hulen, Moberly, J. W. Buffington, George P. Adams, Mexico, for respondents.
This is a second appeal. The parties will be referred to as they were styled in the trial court. The action (in two counts) is to determine title and in ejectment, the premises involved being a 220-acre farm in Randolph County. The first trial resulted in a directed verdict for plaintiffs upon which judgment was rendered. On the former appeal to this court that judgment was reversed, and the cause remanded. 359 Mo. 52, 220 S.W.2d 15. Upon retrial the jury returned a verdict for plaintiffs on both counts and from the judgment entered thereon defendants prosecute this appeal. The issues are stated and the facts considered at length in the opinion on the first appeal. The second trial was held upon the same pleadings as the first except for an amendment to plaintiffs' petition (by interlineation), and as to which error is assigned. The same evidence was again produced by the parties respectively, and in addition thereto other proofs were adduced, the emphasis in this respect being on the part of plaintiffs in particulars presently to be noticed.
On and prior to June 11, 1938, Robert C. (Tuck) Collins was the owner of the farm in question. On that date he signed and acknowledged a warranty deed conveying the premises to plaintiffs, Wilcox and Truesdell, who were strangers in blood to him. Plaintiffs alleged the execution and delivery of that deed, and they rely on it as the basis of their claim of title and right to possession. Collins died January 10, 1947. He continued to live on the farm, and paid the taxes thereon until his death. Reciting a consideration of 'One dollar and other valuable considerations,' the deed bears date of June 11, 1938, and the certificate shows acknowledgement on the same day, but it was not filed for record until April 16, 1947, which was more than three months after the death of Collins, and slightly less than nine years after the date it was signed.
Defendant Otis Temple, a nephew of Collins and his executor, claimed title to the farm under the residuary clause of two identical wills of Collins, both made subsequent to the date of the deed. Coons' interest is merely as a tenant under a lease from Temple, so that if the latter does not have title, Coons' right to possession must fail. Defendants affirmatively pleaded in their separate answers that 'if plaintiffs have a purported deed as alleged, it was never delivered.' Such was the critical issue upon the trial, and on this appeal the assignment challenging the submissibility of plaintiffs' case is directed to that question.
On the first trial there was no direct evidence touching the matter of delivery, but instead plaintiffs relied on the statutory presumption thereof, raised by Sec. 3435, R.S.'39 and Mo.R.S.A., Sec. 490.410, R.S.Mo. 1949, from a properly acknowledged deed introduced in evidence. On the former appeal it was held that such statute must be read in connection with another section, Sec. 3437, R.S.'39 and Mo.R.S.A., now Sec. 490.430, providing that neither the certificate of acknowledgement nor the proof of any such instrument shall be conclusive, but may be rebutted, and it was, therefore, reversible error, in the light of what was regarded as strong evidence against delivery (as set out in that opinion) for the trial court to have directed a verdict in favor of plaintiffs. While holding that a prima facie case was made through the introduction of the deed, the view was expressed that it appeared probable that better evidence than was produced could have been obtained by plaintiffs.
On the trial now under review, plaintiffs introduced direct evidence of the delivery of the deed. This was done through the testimony of Austin Walden, a practicing attorney of Moberly. The only point urged in connection with the sufficiency of the evidence is that it did not warrant 'a holding that Collins parted with all dominion and control over the deed, and had surrendered to Walden the right of recall.' It may be noted in passing that this contention is directly contrary to the defendants' express admission (appearing in connection with another point) that Walden's testimony 'covered what was essential to make an effective delivery so as to pass title * * *.' We limit our outline of the facts to the single challenge just mentioned.
Walden testified that on February 23, 1939, Collins came to his office (he was then in partnership with C. M. Hulen, one of plaintiffs' attorneys in the present action), and brought with him, and exhibited to the witness an envelope containing the deed in question, which, as Collins explained, had been prepared for him by Emil Gutekunst, another attorney at Moberly; that Collins said he was going to take the deed, and put it in his box, and when he was dead Wilcox and Truesdell would have the farm. After examining the instrument, and ascertaining it to be 'an outright warranty deed without reservation of a life estate,' the witness said to Collins, 'Tuck, that won't be any good if you simply put it in your box, and then die with it in your box.' He further told Collins
The witness further testified that Collins them made inquiry as to whether the witness had a safe, and upon being told he did, Collins said, 'Well, I will put this deed up with you, and then leave it here for you to deliver upon my death to Wilcox and Truesdell.' To which the witness replied, 'Well, I will take it and put it in my safe and deliver it with the understanding, of course, that if you put it up with me, then that's that; you have deeded your farm to them, and you can't take it back, and you can't change it.' After their conversation was finished, witness 'placed the deed back in the same envelope and wrote on a corner of the envelope the figures ' When Collins left, the witness gave the envelope to his secretary and instructed her to put it in the safe.
In the following November (1939) the law partnership of Hulen and Walden was dissolved, but the former partners continued to office in the same quarters, and Mrs. Martin continued to serve each of them as secretary. Hulen retained the partnership safe. In the latter part of 1939 or early part of 1940, when Walden acquired a safe of his own, he instructed Mrs. Martin to take such papers as pertained to his business, which were in the partnership safe, and put them in his own safe. The deed in question was apparently not so removed because the next time Walden saw it was on or about April 11, 1947 (8 years later), when Mrs. Martin discovered it in the former partnership safe, and brought it to him. Collins having died in the meantime, he delivered the deed to the grantees.
Walden further testified he forgot about the deed having been left with him, and subsequently wrote a codicil and two wills for Collins (under which the farm, except for the deed, would have passed to Temple as the residuary legatee) without recalling that Collins had placed the deed with him.
Defendants contend the court should have directed a verdict for them for these reasons: (a) Plaintiffs were estopped to show delivery to Walden; (b) There was no evidence warranting a finding that Collins parted with all dominion and control over the deed; (c) Walden was an incompetent witness under the dead man's statute; and (d) Walden's understanding with Collins amounted to an oral conveyance of an interest in or concerning the farm in violation of Sec. 3354, R.S.'39, R.S.1949, Sec. 432.010.
The charge that plaintiffs were estopped from showing delivery to Walden, thereby 'changing front on the second trial after having on the first trial relied solely on a presumption of delivery of the deed' (which is raised in a variety of ways under several heads) requires scant attention. The whole contention is based on the false premise that plaintiffs' knowledge of the deposit of the deed with Walden was 'inconsistent with their position of presumptive delivery on the first trial and explodes and disproves such.' An examination of the record will be found helpful. On the former appeal defendants' brief argued thus:
A reversal having been induced in part upon that argument, what was the situation on the second trial? We find plaintiffs offering themselves as witnesses, but defendants objecting...
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