70 S.W.2d 1094 | Mo. | 1934
Lead Opinion
This is a suit to set aside and declare void two warranty deeds in usual form executed by Moses McGrew as one transaction, the one deed conveying to Vivian Skinner and Neva Littrell, sisters, eighty acres of land in Randolph County, this State, and the other conveying to Maggie Wirt Littrell and Waldo Littrell, mother and son, one hundred acres of land in the same county. Moses McGrew, the grantor, had lived in Randolph County since 1885, coming there as a young man, engaged in farming, acquired this land, and represented himself to be single and never to have been married. *1193 The deeds were executed the day of his death in June, 1930. The grantees in the deeds, the defendants here, were Mrs. Maggie Wirt Littrell, then a widow, and her three children, Vivian Skinner, whose husband, Aubrey Skinner, is joined as a defendant, Neva Littrell, a daughter, and Waldo Littrell, a son. Moses McGrew, at the time of making these deeds and for many years prior thereto, had made his home with the Littrells, who also were engaged in farming and lived near McGrew's land. Mrs. Littrell had been a widow only a short time. The deeds were made to the surviving members of Watts Littrell's family, his widow and three children, with which family the grantor had made his home for more than twenty-five years. After the making of these deeds and McGrew's death, the plaintiff, a resident of Kentucky all her life, and of which state Moses McGrew was a resident before coming to Missouri in 1885, appeared on the scene and brought suits to set aside these deeds, claiming to be the child and only heir of Moses McGrew by a Kentucky marriage in 1885 between Moses McGrew and Mollie Bet Jones.
Alleging that she is the daughter and only heir of Moses McGrew plaintiff further alleges that the two deeds mentioned should be set aside and declared void on the ground that at the time of executing same the grantor was mentally incapable of executing deeds; that the deeds were never delivered, were procured by undue influence and were without any consideration. The answer denied all these allegations. The court heard the evidence and found the issues for the defendants, reciting in the decree the court's finding that "at the time of the execution of said deeds, Moses McGrew was the owner in fee simple of said above described real estate, and was of sound mind; that said deeds, and each of them, were executed freely and voluntarily by said Moses McGrew with full understanding on his part of their nature and import, and that he was not unduly influenced to make same, and that at said time, no fiduciary relationship existed between him and the defendants herein, or any of them, and that the consideration for said deeds was the love and affection grantor had for the respective grantees therein, and the court finds the issues joined in said consolidated causes for defendants, and each of them, and against plaintiff." There were originally two suits, each involving one of the deeds mentioned, but by consent they were consolidated for trial and one judgment rendered covering both. From the judgment entered the plaintiff has perfected her appeal to this court.
It will be noticed that while the trial court did not make a direct finding on the issue as to whether plaintiff as the daughter and only heir of Moses McGrew, as its other findings made it unnecessary to do so, it is conceded that the court did so find, and defendants concede that the evidence amply justifies such finding. The evidence is that Moses McGrew lived in the same neighborhood in Kentucky with *1194 plaintiff's mother, Mollie Bet Jones, and "kept company" with her just prior to his coming to Missouri; that shortly after coming to Missouri at the age of twenty-three, Moses McGrew returned to Kentucky for only a short visit and married Mollie Bet Jones there in March, 1885, but immediately returned to this State and never again saw or communicated with her. She continued to live with her parents in Kentucky as before and in June, 1885, gave birth to this plaintiff. Plaintiff's mother died in Kentucky when plaintiff was seven or eight years old and plaintiff continued to live there with her mother's parents till she married one Clark. Plaintiff says that while she knew her real name was Delma McGrew, her mother was always known as Bettie Jones; that she never saw her father and was informed and supposed he was dead; that she first learned that he died in Missouri in 1930 through her mother's brother shortly after such death. Moses McGrew never married in Missouri and always represented and was supposed in the community to have never been married or had any children. John Harris, a cousin, came with McGrew from Kentucky and also settled in Randolph County and knew of McGrew's marriage in Kentucky to plaintiff's mother, but, at McGrew's request, never divulged the fact of his marriage or past history until after McGrew's death, and then communicated such fact to plaintiff's relatives on her mother's side. In this way the true facts as to McGrew's dying and owning considerable property in this State became known to plaintiff and this suit followed. It also appears that Moses McGrew, on coming to Missouri, severed all communications with his own people in Kentucky and became as a stranger to them. These facts are thus outlined as they have a bearing on the issues for decision.
The court found and it is conceded that these deeds were deeds of gift without consideration except the gratitude, love and affection of Moses McGrew for the Littrell family, the grantees, to whom he was not related by blood or marriage. This fact is more easily understood when we remember that, whatever may have been the cause, Moses McGrew in early life left his native state to go into a strange land and there begin life anew. To his mind his marriage in Kentucky imposed no obligations on him and the same was to be blotted out and forgotten. On coming to Randolph County in 1885 he found a friend in the father of Maggie Wirt Littrell, who gave him employment. When he died and Maggie Wirt married Watts Littrell, he found friends in them also and went to live with them and their home became his home and their children the objects of his affections. He was undoubtedly thrifty and industrious. He purchased the one hundred eighty acres of land in controversy, which he farmed while living with the Littrells, and at his death had some money in the bank and considerable personal property. On more than one occasion he expressed his intention to give his property to the Littrells because *1195 of their kindness and help to him, especially in giving him a home, and in this connection said that his own people cared nothing for him, nor did he for them. Moses McGrew had, however, always paid the Littrells two dollars per week so as not to be an actual expense to them. The making of these deeds by grantor to defendants, disregarding his blood relatives in doing so, is not, under the circumstances, so unnatural as to excite suspicion or to call for further explanation.
[1] The sole basis of the charge of undue influence in procuring the deeds in question is that defendants occupied a fiduciary and confidential relation to the grantor, placing on them the burden of showing the transaction to be free from the imputation of undue influence. There is clearly no evidence of actual undue influence being used. There is not a particle of evidence that defendants, or anyone for them, ever demanded or even requested Moses McGrew to make these conveyances or to give his property to them, and it is hardly claimed that defendants dominated and controlled the mind of the grantor or by the exercise of overpersuasion or mental coercion brought about the execution of these deeds. The only claim is that, the relation of confidence and trust having been established, the burden was on defendants to refute this presumption and disprove that the conveyances were the result of undue influence. [Cook v. Higgins,
[3] The deeds in question express the consideration of "One Dollar and other good and valuable considerations" paid to the grantor and it is conceded that same have no other consideration than love and affection — a good as distinguished from a valuable consideration. Plaintiff asserts that love, affection and gratitude will not support a deed when made to grantees not related to the grantor by blood or marriage. We do not think this is the law. The owner of land may give it away to a stranger, as well as sell it to him, and consummate the gift or sale by deed. [Blackiston v. Russell,
[5] Nor can we agree to plaintiff's contention that in a gift of *1197 land consummated by the execution and delivery of a deed, the gift is not complete and valid unless there is at the same time a delivery of actual possession of the land to the grantees. That is required in a parol gift of personal property, but not so as to land. The execution and delivery of the deed dispenses with the old ceremony of livery of seizin.
[6] We will next consider the question of the mental capacity of the grantor, Moses McGrew, to make the deeds in question. At the same time the deeds were executed, and as part of the same transaction, Moses McGrew made and executed a will. The will makes the same disposition of the real estate as does the deeds and in addition thereto makes disposition of his personal property. The validity of the will is not drawn in question by this suit, but it is conceded that the same rule as to mental capacity applies to the grantor of a deed of gift as to the testator of a will. [Jones v. Thomas,
In this connection plaintiff takes the position that Judge Cave, whose evidence strongly supports defendants' contentions as to grantor's mental capacity, the want of any undue influence, and that the deeds were delivered, was an incompetent witness for the reason that an attorney cannot disclose confidential communications with his client. We do not think the case of Goodman v. Griffith,
[7] It is next insisted that the deeds are void for want of delivery by grantor during his lifetime. There is no question but that such delivery is essential and no citation of authorities is necessary. The question here is one of fact rather than of law. The essentials of a delivery of a deed are, the parting of the possession and control of the same by the grantor and the putting of such possession and control in the hands of the grantees, or someone for them, with the intent to pass title from grantor to the grantees. The intent to pass title is here, and generally, the crucial point. [Coles v. Bedford, *1200
Acceptance of a deed by the grantees is also necessary to its validity, but where the same is beneficial to the grantees, an acceptance will be presumed in the absence of any evidence showing a rejection of same (Chambers v. Chambers,
[8] What we have said as to grantor's knowledge of the purpose and effect of the delivery of these deeds in passing title largely disposes of plaintiff's contention that the deeds were testamentary in character and not intended by grantor to take effect till after his death. Grantor was told and it was explained that the purpose and effect of deeds when delivered was to pass title at once and that the will would only take effect after death. Plaintiff's argument is that as McGrew executed the deeds and a will at the same time and as part of a single transaction, the deeds and the will must be read together and the same testamentary character given to the deeds as to the will. [White v. Reading,
The result is that the judgment should be affirmed and it is so ordered. Ferguson and Hyde, CC., concur.
Addendum
The foregoing opinion by STURGIS, C., is adopted as the opinion of the court. All the judges concur, except Hays, J., absent. *1202