259 Mo. 223 | Mo. | 1914
Plaintiff brought suit in the circuit court of Barry county, for the assignment of dower in the following described real estate in said county, to-wit: The north half of the southwest quarter of section 31, township 25, range 26.
Upon a trial the court found the issues in favor of defendant, from which finding and decree plaintiff appeals.
Plaintiff married Nathan T. Marbut in 1896. They lived together a short time and in 1901 she brought suit against him for divorce, and same was granted. At the time of Nathan T. Marbut’s marriage to plaintiff he was an elderly widower living in Barry county. In February, 1892, during the lifetime of his first wife, Malinda J. Marbut, he conveyed to her by warranty deed, for a nominal consideration, the land above described. About three years after this transfer Malinda J. Marbut died. During her lifetime and subse
Upon a review of the facts as preserved in the transcript, much of which is irrelevant, we find that the material question in controversy is as to the delivery of the deed from Nathan T. Marbut to his wife Malinda J. Marbut. The importance of the determination of this question renders it proper to set out in their own words the testimony of the witnesses relative thereto.
W. D. Griffith, a witness for defendant, testified as follows: “My name is W. D. Griffith. My home is down close to Carney. My business is farming. I was born and raised in this county. Marion P. Griffith was my father. He died eight or nine years ago. He was a notary public at McDowell on the 29th day of October, 1892. I was present when Nathan T. Mar-but executed a deed before my father to Malinda J. Marbut at McDowell. Myself, my wife, Mr. Marbut and his wife, my father and brother were present. My brother is dead. He witnessed the deed. He died seven years ago. I am familiar with my brother’s handwriting. ’ ’
Witness was handed a deed dated February 29, 1892, being the deed from Nathan T. Marbut to Malinda J. Marbut, relative to which witness further testified: “That deed is in my brother’s handwriting. I saw him fill out the deed for my father. I do not remember how he prepared it, whether he drew it from another deed or not. I remember he made a mistake some way in the deed, I do not remember who made the change and erasures, whether it was my brother or my father. My father first discovered the mistake. I think this was done before Nathan T. Mar-but signed the deed. My father acknowledged the deed and turned it over to Mr. Marbut and Mr. Marbut
V. H. Marbut, a witness for defendant, testified as follows: “My name is V. H. Marbut. I live in the north part of Barry county. Nathan T. Marbut is an uncle of mine. I am a cousin of Edward Marbut, the defendant. I remember my uncle, Nathan T. Marbut, going to, Mr. Griffith at McDowell to make some instruments of writing. I was there. That was during the lifetime of Malinda J. Marbut. I was present when the deed was made. I saw the deed filled out. I was one of the witnesses to the deed. It was being executed before Mr. Griffith. He is now dead. This signature to this instrument is mine. I was acquainted with Nathan T. Marbut’s handwriting. I think this is his handwriting. Mr. J. J. Griffith did the writing of the deed. He was a son of the notary public. There was a mistake made in some way in the body of the deed. It was copied from another deed he had. Instead of using the name Nathan T. Marbut, he used the name in the original deed. The matter was filled in before my uncle signed it. J. J. Griffith erased the names and inserted the other names. I signed it at the request, as well as I remember, of my uncle, Nathan T. Mar-
That he exercised dominion over the property after the transfer, which dominion bore all the indicia of ownership, there is no question; but where the marital relation is sustained in amity, as it seems to have been in this case, his dominion was not inconsistent with her ownership.
The multiplied cares of farm life demand the joint labors of husband and wife; of necessity it becomes his duty to control and direct the management of the property, the tillage of the soil and the harvesting and marketing of the crops, while she is ever occupied with the exacting demands of the household. Under these circumstances we are not impressed with the contention that the evidence of his authority over the property indicated any lack of good faith in the transfer to his wife.
We are told, in testimony elicited by plaintiff, that the grantor’s purpose was to transfer the title of the property to his wife to protect himself against the resultant effect of a possible judgment he feared might be rendered against him as surety on a bond, upon which suit was then pending in an adjoining county. Granted that this be true, no protection would have been afforded by this transfer unless it was complete in all of its particulars, and thereby effected a transfer of the title. If effective for this purpose, it was of like force for all purposes. So far, therefore, as the intention of the grantor is concerned at the time
In determining the good faith of the conveyance, we are not limited to facts and circumstances throwing light on the intention of the grantor alone, but evidence as to the conduct of the grantee in this regard is pertinent.
That the deed was delivered to her when it had been executed and formally witnessed, is not gainsaid. There is nothing in the evidence to indicate that she regarded it as other than a conveyance to her in good faith, or that she ever did anything thereafter indicating an absence of ownership, other than to permit her husband to control the property, which we have shown was natural and necessary under the circumstances. Certainly she never did anything to divest title out of her or vest it in her husband. True, she never had the deed recorded, but as concerns the claim here made by plaintiff this did not affect the integrity of the grantee’s title. If, therefore, the title passed, and we so hold, it is immaterial how the husband may have regarded or construed the conveyance thereafter, and evidence of his devise of the property to defendant is a mere circumstance which may tend to show how the testator then regarded his tenure, but cannot affect the validity of the title which passed by the deed.
From all of which it follows that Nathan T. Mar-but was not seized of the property in question during coverture with the plaintiff, and that the judgment of the trial court should be affirmed, and it is so ordered.