Keener v. Williams

COURT 682 OF MISSOURI, SUPREME Keener v. Williams. minority. application The

their has no statute under in evidence. facts appel made under Whether Section 7 or 91 Section appointment improvident lant’s administrator was probate properly and court revoked the. same. This not a revocation cause under was Section Revised 42, complaint which must 1919', on writ Statutes ing by correcting one interested. It an error by the court. The committed court could do this mero ex powers. [McCabe under inherent motu its' 76 v. Lewis, respond question Mo. l. 296, 301.] c. Hence, whether proper probate ents were claimants in court in the first instance material, is not and a determination of the presented issues here not conflict with Tittman v. App. supra. Mo. Edwards, 492, For the reasons above stated the case is affirmed. Raglmd, All in result. concur; J.,P. DINK JEF KEENER, WILES,

MRS. GOLDIE MRS. FERSON MRS. and SID WILES WILLIAMS SAINT BETTIE WILLIAMS, LOUIS MRS. WAL MACK WIL TERS, WILLIAMS LEWIS Appellants. LIAMS, April One,

Division 1925. purporting Every DEED: Evidence. deed 1. ACKNOWLEDGED convey ¿state, acknowledged mannei if and certified in real evidence, prescribed by statutes, fur- without is admissible signed by prima-facie proof, it was and is evidence ther appear thereon, signers purported grantors whose name3 as conveyance grantee, prima-facie al- a the named a case of makes stoutly though purported executed denies that he ever maker signature signature purported that his testifies witness to and a genuine. is not as a witness thereon Weight Delivery: of Evidence. warrant To Execution and —--: 2. acknowledged duly deed, regular finding on its face and delivered, must recorded, executed Yol. 307] satisfactory. be clear and conveying And where a deed the owner’s party, party conveying land to a third such third regular face, duly land to such owner’s both on their both properly acknowledged day, the same both forthwith recorded and have remained of record unassailed more than for thirty years, having been recorded were returned said owner to and, wife, deeds,” when received he said to his “Here are the being her, placed safe-keeping after read to she trunk them for in a jointly by death, used it them and there after found her said, appeal, court, finding cannot be that oh the trial that the of party the said deed of his the owner and wife was ex- to third delivered, against weight ecuted the the con- of evidence or trary evidence, although signatures all to -the the of said owner by mark, write, and his wife were and neither could and he read or stoutly denies that he the deed or authorized other person him, to it for and testifies he never that that knewv made, purported such a deed had been and one the witnesses to of signature purported not his that his attestation testifies

genuine. - n : Paying Remaining -: 3. Possession: Taxes. The fact conveyed purported husband, homestead the whose deed the many years, possession the to his remained in for cultivated paid soil, crops land, marketed on the assessed the the taxes prima-facie against alone, hiin the is not sufficient to overthrow by acknowledged deed, duly certified where case made helped kept together tlie house and on the homestead and she lived produced. him take care of what convey Delivery. a land to -: a and wife Where husband 4. acknowledged deed, party, duly re-con- immediate his a third delivery veyance to deed of their is tantamount a to the wife to acceptance it. his of him and to Delivery: Acceptance. To a constitute -: Manual 5. -(cid:127): delivery delivery be manual of deed it is essential valid a delivery grantee himself; to made is if it sufficient made to re-conveys his use, another his he thereafter and if another presumed. acceptance will be of the deed may Delivery a deed be construc- -: Constructive. -: of 6. delivery grantor has actual; complete when the as well as tive pass it, parted shall with intent over with dominion accepting benefits. grantee its grantee, assents thereto and the -1; gran- Testimony Grantor. Where of To Deceased Wife: 7. party conveying at- voluntary his wife is the land tor denying and de- validity, its execution tacking its light she is dead. fact that livery of be is to considered SUPREME COURT MISSOURI, OF Credibility

-:8. of Witness: Deference to Chancellor. While this may weigh court equity the evidence an decide suit and de novo, usually finding it will defer to the trial chancellor upon credibility where an issue of fact rests of witnesses. -:9. Consideration. Where the deed recites consideration of dollars, three thousand a lack of be shown for consideration cannot purpose defeating operative apt of effect its words con- veyance. conveyance —--: -: Deed to Wife. A husband wife presumption gift advancement, raises the that it and need is a supported by not therefore be a valuable consideration. Conveyance Resulting -: l'l. to Wife: Trust. husband aWhere voluntarily conveyed purpose his land avoid- to his wife for the ing payment conveyance unjust being debts, such long acquiesced in, the consent of both and out divest-the title him, ground her her heirs after death and revest it in on the resulting immediately upon trust arose in favor its ex- delivery, cogent clear, ecution and evidence must be con- vincing implied beyond that the trust exists serious doubt. - n : resulting -: -p: 12. To Defraud. Creditors. A trust supposed cannot arise when the out trust transactions of which-the origin purpose. is bottomed had their husband, through fraudulent Where a intermediary, conveys his wife for an his land to notes, resulting purpose avoiding payment the the of no certain upon trust in his arises of the transac- favor mere denunciation any swindle,” grew the Mayes, 94 Mo. Groff, Rust v. 67;Mo. 2209; Beio v. 79 Coming Lieedy, 114 v. 315; Pence, Burk 206 Mo. 511; v. Georger, it is 544. Where Pierce 103 Mo.

Mo. v. 454; pre- grantor is no there write, the shown that sumption could person to other that he authorized some party alleging the burden it proof. the it has him, 132 Ga. Owens, J. Hansen v. 411, 487; 18 C. sec. Albright v. Marden 1029'; Stevenson, v. 126 S. W. 648; SUPREME COURT OP 686 y. Keener Williams. Supp.

Dortliy, 42 N. T. 46 L. R. A. 694; Wannell v. Kem, 478.; 57 Mo. Borand v. 33 130. Walrath, Iowa., (2) The evidence in fails this case to that there show delivery any alleged was ever of the deed. The testi- mony part plaihtiffs the the is to effect by to the deed been sent Ozark some one unnamed postoffice to unknown, had been at Lo- returned gan, delivered there Uncle taken Lewis, home him deposited joint depositary in a which trunk, was the papers Nancy, for the of Uncle Lewis Aunt that it remained in the trunk after until her There death. no evidence that she ever claimed title or asserted ownership any prerogatives or assumed of owner- ship. delivery complete “The of a when the grantor obligor parted or has with his dominion over pass grantee with the intent it shall it, to the or ob- ligee, provided the latter to it either himself assents agent.” Tyler App. or his 40 165; v. Mo. Mo. Pac., 'Ellis v. 313; 106 Mo. v. Hall, Standiford, Standiford 97 Mo. 231. “The act must have with the been intent on the part grantor to divest himself of and it title, must accepted grantee have been with the intent Tyler take title Hall, as indicated the deed. 66 v. 313; Mo. 166 Williamson, 358; McNear v. Mo. Hall v. 107 Mo. Mo. Hall, 101; Sneathen, Sneathen v. 104 201. was (3) plaintiffs, testimony The of the all of which protect to the effect that the deed pay having Williams from a “swindle” 307] 1924. 687 Keenef v. Williams. hear can see-and the witnesses. Barbee who

chancellor 214 Bivert, v. Mo. 473. 240 Mo.' Creamer v. Bank, acknowledgment, (2) a of both certificate A deed with prima-faeie regular is evi- recorded, and face, on their delivery. conveyance validity and its of the dence Shepherd, 179 382. Elliott v. Mo. 1919'; R. S. Sec. presumption, impeach overcome this a And satisfactory. clear and v. must Webb the evidence be El- Davis, 549; Barrett v. 104 Mo. 540; Mo. Webb, 187 Shepherd, 240 Mo. Barbee v. Mo. 382.; Bank, v. 179 liott conveyance (3) 106 Mo. This 315. Pence, Burk v. 297; n (a) conveyance resulting trust. A presumption that the con- to wife raises the husband veyance Dar- an advancement. is for her benefit is (b) 222. To establish result- Mo. Darrier, rier ing 58 v. property standing of a favor husband trust must be clear of the evidence the name convincing. ; Mo. 260 v. 243 Morris, Medlin Derry Mo. Fielder, 176; v. 216 v. 241 Mo. Keef, 366; voluntary Sharp Berry, (4) “If con- 575: v. 60 Mo. illegal veyance purpose, for or fraudulent is some conveyance, a common or modern whether law voluntary grantor; if the no trust result to the will conveyance to hinder and defeat creditors.” is made Perry 125 Mo. West, 621; sec. 165; Sell v. Trusts, Creamer Mo. Bivert, partition ninety of acres of

SEDDON, C. Suit County, originally instituted in Christian land county. petition The the usual of circuit court plaintiffs alleging defendants, and all of form, except land, owners said Williams, are the Lewis Nancy of defendant wife the deceased Williams, which simple, possessed in fee seized and Williams, Lewis died subject curtesy Lewis life estate of defendant except plaintiffs defendants, said Williams; at law are the heirs Williams, .of sole one- undivided is the owner an each curtesy subject to the seventh interest said land, SUPREME COURT OP Keener v. "Williams. par- susceptible that said land is not Williams;

tition in kind that the the deceased debts of ances- prays paid, fully respective tor have been that the parties the in interests of said land be decreed and that proceeds be the land sold and division the sale said according respective to said interests. generally The answer of Lewis Williams denies all allegations petition, specifically the and denies , plaintiffs and the that other defendants have interest contrary affirmatively pleads in the but on land, that “he is the sole absolute owner of the and same and has open, possession in been notorious and exclusive thirty years pos- for the in thereof last and nowis such exercising ownership all the acts of session; hold- and ing paying during the same and taxes thereon all said every person time to the exclusion other whatsoever. says further This defendant is informed and believes -plaintiffs right, that claim some title or interest in land reason of two certain deeds of record in Rec- County, order’s office of Christian dated 9, November wherein it is that for $3,- recited consideration of ,000 quit- Nancy and defendant his wife, Williams, claimed said land to H. and the W. Williams said W. H. purports convey Nancy Williams to same to Williams, plain- the deceased wife of defendant and mother of tiffs, consideration, for a like and said deeds are a on cloud executed, defendant’s title; defendant or de- livered and, deed described at the first same time purports to have been executed and ever since, defendant owned held title to said land been in the ex- has every possession claiming against clusive title thereof, person prays other whatsoever.” Defendant the court nisi decree to its declare said void and-of no/ that the be to effect, title land declared be in de- said parties plaintiff fendant that the other and defend- right be decreed have or title ant no therein. reply averring

Plaintiffs filed to said answer, Nancy Williams, husband Lewis Williams and title resided on land and that thereto vested in Nancy possession who had Williams, exercised own- ership by virtue of the thereof, deeds mentioned de- fendant’s answer.

The other three defendants, heirs of Wil- disclaiming any liams, answered, interest land, stating, contrary, belongs same, but that the replied Williams. Plaintiffs Lewis leging al- answer, agreed defendants contracted defendant, ease he suc- obtaining ceeds cancellation of the deeds mentioned separate vesting answer and in title him- give the said self, will at death bequeath the land to the other defendants and will ex- plaintiffs bounty. clude from his

Upon change of venue, the suit transferred County, Lawrence tried where was the court as a ’ equity jury. suit in without the a aid of part, Plaintiffs, to sustain the issues on their of- original quit-claim fered in evidence the two deeds men- tioned in the defendant, answer of Lewis The Williams. quitclaim first a in deed the usual the 9th form, dated day purporting of and November, 1888, to be executed by Nancy and sealed and Lewis Williams Williams, his respective by their and cross-marks, witnessed at- Titterington by M. tested J. and T. Crammer, W. where- by grantors, expressed for an consideration of three quit-claim thousand the land in forever dollars, remise, release and controversy, particularly H. described, W. County, grantee. Williams of Lawrence Missouri, as The purports acknowledged grantors by deed to have been in County Lawrence on November 1888, before J. 10, J. public, notary acknowledg- certifies to the Baker, who upon statutory ment in certificate deed in form. Appended the deed the certificate of the Recorder reciting County, Christian Deeds of that was filed county and recorded in the deed records said on No- vember 12, 1888. quit-claim second deed in the form,

The is a usual day of dated the executed sealed November, 1888', 9th Sup 307 Mo. —44. SUPREME, OF

690' COURT an considera- whereby, expressed PI.W. by dollars, remises, three thousand releases tion of land, particularly described, the same forever quit-claims Missouri, as County, Christian Nancy Williams acknowledged This to have been purports deed grantee. 1888, in on November County- Lawrence 10, grantor certifies to the notary Baker, public, before J. J. who in upon stat- acknowledgment in certificate for record form. This deed was likewise filed utory on County in the deed recorded records Christian case prima-facie 1888. 12, Having 'November deeds, plaintiffs in introduction evidence rested.

It evidence Williams appears left as her sole 1920', surviving, died in November, de and her suit, husband, to this heirs, parties bought fendant, Williams. 1881, conveyed in and was controversy October, land Chris recorded in warranty deed, to him which was ex on The consideration 31, tion October County He paid pressed testified, deed is $2850. himself, always consideration taxes paid of trial of this purchase from the date of date land name. The tax his own receipts the tax suit, taking tes receipts are evidence substantiate defendant’s in'this The evidence tends show respect. timony land on the and his resided wife, Nancy, Lewis Williams 1881 until purchase from the time of continuously has Lewis Williams Nancy’s death, .all of thereon; that during since continued to reside farmed the controlled land, said time Lewis Williams col raised thereon crops its sold the management, such, tes from sales. lected the moneys arising income living had no source of or tified that wife to the quit-claim her. except respect what he With gave years testified: £I am about eighty question, deeds I read cannot or can’t word old. I read write. any never never name to I signed anything. signed my farm presence my to Henry deed Williams Vol. Titterington anyone T. or

J. or Grammer else. M. W. any sign my authorized son Jeff deed for me never I any such instruments. I never made never executed and any heating conveyance purpose for the of this land long my how debts. I don’t recollect it has been since quit-claim I rington deeds were on record. Har found out these deeds weren’t worth a dime. I told me quit-claim Har never discussed these two deeds With rington. talking heard him about the Bill Neale deeds, I thought him what he and several asked others, any good. they them He weren’t didn’t any mine nor mention did he tell me that deeds good, any tell we had all made for I weren’t didn’t any him that had made deeds like that. I never made I I not have these deeds nor did I recorded, deed. did any ever wheat I don’t who have deeds recorded. know Nancy’s My property in Aunt name that did. never stood my property name. I had heard know of. The stood I to live Marionville, of a man named Baker used a man named but I never went to his office. I knew Gram acquainted with him. very I but well mer, anybody. it ever don’t a deed for I know as quit-claim about these stood in her name. don’t I know sign any. up don’t recollect wheth I didn’t deeds and I girl about Mrs. and this not I Keener er or talked fixing up They in an found old trunk. trunk, these deeds. were my my It put own hands on them. I never had if did there, when I but I don’t know were. I never didn’t what I know anything it. have to do with didn’t done and jiever discussed they were made. I didn’t know that know and didn’t couldn’t read it with for she wife, her I was never told more about than I did. paying keép property putting name to in her get men these deeds $3,000' didn’t wheat notes. I try time. I didn’t at one and never $3,000' saw tioned, ’’me. girls get the land back a deed and quit-claim grantee (Henry) IT. Williams, W. grantor in the deed from ,for defendants: deed to testified SUPREME, OE MISSOURI, COURT

Kfeener v. Williams. Henry the same that “Q. You are Williams A. Yes. deed, that H. mentioned W. Williams? party. A. I am the ££Q. Yes, You are the man? you get will to examine the deed here. Is £<Q. I your signature Mr. A. It is. Williams? there, paid you see a consideration £<Q. I there ‘ you paid Tell the court three thousand dollars. whether you any money being ? A. sir. No, for that deed made to approached you? this deed How Who did ££Q. ap you? Why, made to A. Jeff come to be proached me. you ever there

££Q. Did see Uncle Lewis Williams you. been made to deed had when he learned A. sir. No, parties there, if were

££Q. Who A. Well, Williams?' I don’t know one, besides Jeff anyone judge, magistrate, one that there but the in.me swore Nobody magistrate? A. No, sir.

££Q. but ¡Do you anything that said or remember ££Q. A. there at that time? done there Jeff subject, approached me came to me Jeff some papers don’t I know whether was there or not. Jeff magistrate’s, I explained went and Jeff to me, and I too, couldn’t swear whether Jeff there or not. was explained regard But he had to me in to the deed. None got my possession. of these ever deeds into think I Mr. notary public, sign. Baker, the handed me the deed to I don’t whether know Jeff the officeat the time. I was.in did not at the same other time signed. papers deed was I never the first saw at all. I just signed. paid saw the one I I never a dollar for the property, although it mentions consideration of three any thousand dollars. I never saw three thousand dol or lars, near that far amount, as as concerned. I signed paper my went on about and and I business, supposed interceding all the time that was Uncle Lewis between Jeff, for I didn’t know business. I never say explained heard Uncle Lewis however. that, Jeff it to me and me told he wanted to save his father from paying paper my signature these notes. The that bears signed acknowledged. signed my I handwriting. that. That is I

I understood that Uncle was in this Lewis Bohemian wheat deal. statement about I never heard him make sup contesting naturally the note. I posed always thought I the one Lewis was Uncle interceding that Jeff was for, but Uncle Lewis signed talked to me. Baker was in his officewhen I signed paper, spoke or deed, I there. and went Jeff regard to signing me property his father’s over. seeing I do not remember of Lewis and Aunt Uncle in Marionville about that time. Lewis I Uncle understood scooting paying keep was property this wheat my note in case he on it. That understand was stuck was ing. through aAs matter of the con fact, I understood trying versation that I had with that he to avoid Jeff paying these notes.

“Q. That That Jeff A. Uncle was who?

was. COURT SUPREME OF you that? Neither

“Q. tell A. Did Uncle Lewis long* been a word to me. It of them said has time got The I that he was remember. idea I don’t protect trying his father. Uncle Lewis wasn’t signed community day my I I name as know papers. up the those the deed. I walked street having him town time I don’t remember a short seen didn’t. al- before nor do I remember that I have that, ways friendly have been with been Uncle friendly always.” of them with all Douglass, testifying a witness on behalf

Otis came “Jeff office said: defendants, year ago and to me about execution or more talked family to the am kin deeds. kind of just stepped my office told me the trouble into about had had. lie those beating some wheat swindle. Some the idea Bohemian given on kind a his father account note had they trans- had made these Bohemian wheat deal—that payment defeat the of it. He said he fers order to his had fixed the to save had the deed—he framed deeds paying notes. father swindle from this just information to me, in and this He came volunteered up Henry him fixed this on the Williams had understanding man that he was to be used as straw a payment Bohemian notes. wheat to defeat the these mixup There kind of wheat swindle it was some say trying* father. He that anything to save his didn’t he was signing* his father or that deeds, about Henry he used it, didn’t them. As I understood help payment man Williams a straw defeat as away, get for his father’s farm.” the title notes—to Titterington, M. a witness for defend- J. called as purporting the deed to have was asked to examine ants, by'Lewis and whether wife, been Williams executed signature a witness to the execution there- indorsed signature. think testified: “I don’t on was own He any having I remembrance of ever don’t have is. signature a to the' witness Uncle deed as his wife. I last heard of long around ago twenty- Grammer Marionville time — twenty-five years. four or I do sign- not remember him ing any deed with me. I pur- Baker, know the man who ports acknowledgment to have taken this but there, yon couldn’t tell he is. where I testified in a case in the cir- signature my cuit that if court this was it didn’t resemble my writing. say I didn’t my that it writing resembled my signature, and looked like but that no recollec- say tion of it. signing I did that I had no recollection of my it and.I didn’t handwriting. think that it was I have no recollection in witnessing the world of deed. didn’t it. handwriting.” write That is not Lee Wilson, defendants’ testified witness, that he procured purchaser had at time one for the land and go “I asked Uncle if he wanted to on with the sale you and he said to do ‘What think of it?’ and says, go?’ she ‘Well, where would we or, ‘Where would something we move to?’ or like that. She said, ‘We any wouldn’t have if home we turned it said, loose.’ She get twenty ‘If we could acres of over land there of ’ Phillips’s. twenty Aunt Nan right That is acres edge they of town. I told them I didn’t know whether buy could it or not, and after talked over for awhile decided not to sell I went back home and no dealings sale was made. I never had other Uncle the farm Lewis about say anything never heard Mrs. Wil- liams that indicated that she claimed the quit-claim farm. Uncle Lewis mentioned given any good.” they or asked if were plaintiffs:

William Wiles testified on behalf of “As for (Lewis) the sale of the real estate, recall that he I talked to Aunt about sale of real this estate objected selling lots of and she him times to it. He was getting old, and he wanted to it and move sell to town get place, or a smaller said his and he wife wouldn’t do years anything it. In after he never to me about said only my my these deeds, he came to house and wanted deed, wife to it to him. He back said he had had them OF COURT SUPREME this related to protect children. It wife to pro- made to he deal. said had wheat Hie my ‘To he said, wife so, Told tect his wife and children. keep ” losing what he had.’ them plaintiffs: am“I testified Jefferson Williams something Williams. I know oldest son of Lewis quit-claim deeds these two the execution of about my spring of 1888 when in Texas I was wheat, bought and asked some father me that he wrot$ he came to father’s and if I come home. I would He talking said that wheat business. mother over were change going the deeds he town and to was to wanted going he said, to make when I he asked him was who Henry.’ why it to mother make ‘to I asked didn’t |um expres an which is bead, he said it bear and sion wouldn’t good. him

meaning any asked that it be wouldn’t if he made the deed I way happen what would make that and to die and he said we will was someone away. day change right mother two afterwards or A Horn and father told Uncle and father were town money. ready Horn’s went into Uncle for the I was money ready for that mother officeand him told ready right, that is for her,’ have it said, and he ‘All I money. it or done never counted all about the I I know nothing1 up mother to it there. Uncle Lewis took office I man Baker’s when the sidewalk close this seeing money Baker remember back. don’t ever I Henry anything anything about him. I never said propo being about this straw man or about á I there when of. wasn’t sition that I remember went remember where I don’t the deeds. money*. gave around home her the I when up August. more There wasn’t said next summer away. married and deeds. about the Abont moved place Joplin some 1914 thing father came get putting he could on the farm if me about no use told there was him mother to deed and I bothering After mother where I was. live I would January year. up month there in he was died got Douglass day a letter from two father After a opened him. the letter and to read it to I asked me put Henry says, Douglass did ‘Uncle quit-claim on record at Ozark?’ and he deed, is that got says ‘Something else has to be done.’ come down. says, says, can’t now?’ ‘Well’ he ‘Father what is it I I you anything Henry know find that Williams deed. D'O says it. He it is on rec it?’ I never saw about I said maybe says, ‘who recorded it?’ L said, ord. ‘Well,’ he him. He Henry said, if it is to had it recorded meaning* Henry the one made back. there, other deed is guess, says Henry, I body I had the other recorded. Some says you why get have it recorded. didn’t I living. says, while that fixed back mother was she He you up against never do it. I are it. He said, would you they go girls see will said, say. and see these what my I can see them. went and sisters said, I I saw " they they They asked about it. said believed them things way they woRild stand and-father could leave say anyway. lifetime hear hold I did him reported When back these deeds were made. I girls they refused that I had seen the and that they get the deeds if I can’t these deeds back, he said if partition up order a sale the land and wind we will sell day my part. and will take That one and I was I was day. going talking to him the He he next was sue for these deeds them see that none of back and would attorney.

got anything. go I him to an advised pos my my At the time of death father had mother’s guess. session of them out of the these deeds He took I trunk and he showed them me. That the first was to. time I ever them. whether $3,000 saw don’t this know consideration mentioned in contained was day the roll of bills. It was about a there after was day deeds were made. It same money these deeds were made that advanced. They why money they I don’t to me. know handed get money. My me to told father mother Probably there. want secret that didn’t had a OF MISSOURI, SUPREME COURT v. Williams.

Keener anybody why know. I don’t know Horn Melton band money it to ed me. took the it to moth banded just they er told me to. I didn’t know how much money just a it was roll of I was, understood bills. that this roll bills was the consideration the deed. I didn’t know what the consideration deeds wás until deeds. father showed me the Horn Melton handed money. My me father and mother town at were money gave the time. and I took the to mother. I don’t what done it. know know she with I don’t whether mortgage got ever he Horn Melton any took never not, anything maldng from me. I not know about the did although deeds, these was Marionville at the I time. talking All I was what I mother heard and father know up about it and what has come since. don’t know I paid my whether father $3,000 to Horn Melton or go money. get not. Father and mother told me and to. They together They me were and told that. didn’t tell they they going going’ me what were but do, to were to get something legal. to make the transaction look I go Henry didn’t and take the deed was signed by him.” daugh-

Plaintiff testified: Goldie Keener “I am the my ter of Lewis and Williams. I know father talking having and mother were about these deeds pa’s went to town to done. at have it I at They they going time. said were to make deeds to They keep paying.it. beat that wheat debt from went and It wagon. got they to town in a afternoon when back. bring day. got They They didn’t back that deeds post-office pa brought them later out of the them gave ‘Nancy, them to mother and here are said, deeds’ and mother turned around and ‘Read said, them,’ They and I read them. Mother could read or write. got Logan. supposed they the deeds at I from came Nancy. OzarlU He said here is these I saw deeds, got post Logan,. them at deeds when out office my When I read the deeds to mother told me over she put put I them in them. the trunk there where OCTOBER TERM, They put trunk. had a little trunk in hers and his them I papers together. They put they both used pay- up keep going to fix said ing debt called it. the swindle Several debt, sign, if back and her to she times he wanted you deeds equal the rest of the children I will will make it ” sign do ‘I won’t it.’ said, a deed and he re- “I them testified: heard Plaintiff Mrs. Wiles peat again about the and where it time and in whose name it land was and was. I title to the hardly that wasn’t over to mother’s missed week place. and wanted me to house Father came ‘pa, you came said, him and I how deeds back to beat the wheat debts ‘To said, make these deeds?’ and you security do said, ‘Pa, what debts,’ some to sell it,’ he want back for?’ and said ‘I want the deeds you ‘I it for?’ want want to sell do said, and I ‘What money.’ please When with to do as I ‘ pleased noth- There’s it I said, do as he wanted to ’ ’’ ing doing. plaintiffs. a for witness testified as Jack Coleman persons interested were a conference of who He told of at in a store Marion- in Bohemian wheat deal held father meeting witness’s was attended ville. The pretty am “I others and Melton and and Uncle Horn at that conference Lewis was sure that Uncle party making advising some other a about property to have then consideration of for a fair Uncle was I think their wives. it deeded back to quite deed, was persons There a that made one of the could my book, rate old I find could there. If bunch I I everyone a transfer. made you the names tell say can I deed. All not see Uncle make did you this; know we transactions in business about my understanding a matter general about have a understanding object of was was the deed say couldn’t paying note. wheat this to avoid was ' I think book. without who made these deeds evidence) (the quit-claim deeds body two of these deeds SUPREME COURT OF were written a man tbe name of He Powell. was My judg- the man with Baker the furniture business. handwriting*.” ment is that is his Carney Tom that he had been testified associated business with Horn Melton 188-8and never knew lending* Melton to make a bad deal and, much as required good security $3,000,' Melton would have for usually keep money the loan. Melton did much person. signature Witness identified the J. of J. notary acknowledgments Baker, ’the took who controversy, as'genuine, deeds in “It testified, looks very signature like much of T. all G-rammer, W. right.” signature

Lee also Wilson identified the of J. J. public, notary Baker, to the certificates acknowl- edgment Testimony on the deeds. adduced that J. disappeared night suddenly Baker, J. over some time prosecution afterward .with when-threatened criminal felony. did not out trouble, however, Baker’s arise aof but transaction, business because of some trouble . with a woman.

The defendant Lewis Williams was recalled in re- buttal and testified: “I never did write son Jeff letter down in Texas. I can’t write I never write anybody and I never had to him for letters write testifying going me. I heard about him about me to town making to make these deeds. around town at all and I heard Mr. Coleman’s going meeting* about me over to Marionville to attend a meeting about these wheat notes. If I ever attended a forgotten I had about it. these When deeds was paid I had one of these notes. don’t I know what became of the one. other I never heard of it and no ever one pre- pay asked me to it. The not made deeds were to' paying* vent I other note. don’t recollect when signed up any made. I deeds. I never meeting any was at a at Marionville. didn’t have fric- nothing tion wife about these that ever deeds, any always knew of. ac- She would claim wasn’t ’’ nothing* count friction and to cause over. 701 Keener v. 'Williams.

Upon foregoing’ the court nisi entered evidence, allegations finding petition true; to be decree Nancy that at the time of her death Williams was surviving in fee of the described that her land; owner unassigned has an Williams, homestead husband, by curtesy tenant a life in said land and is entitled to as par- in land estate the whole of said and other plaintiff are at defendant, and the sole heirs law ties, Nancy and are each to a one-seventh Williams entitled part in in remainder said land. The court also finds not the in defendant Lewis owner fee of said alleged plaintiffs in land as inasmuch answer, and, as assignment do not ask admeasurement and of the home- stead defendant does not consent and Lewis Williams partition according to the out interests found set right partition in parties is denied and decree, adjudged and are decreed to hold own said according in land the manner and to the interests set judgment forth the decree. From this defendants have appealed court. to this Appellants assign

I. error in the admission objections, quit-claim their evidence, over deed purporting to W. Williams to have been executed Hi. any proof without 2207, execilfion. Section Revised Stat- ‘£ Deed as provides: Every utes 1919, instrument Evidence. conveying affecting writing, estate, or real proved, acknowledged be or certified which shall may, together prescribed, certifi with the hereinbefore acknowledgment proof, relinquishment, cates proof.” without In Barbee further evidence, be read Mo. l. c. this court Bank of Polo, v. Farmer’s have this section to mean construed has said: We acknowledgment place takes the certificate of that the proof signed that it delivered; the deed duly prima-facie executed, evidence al Such that ways that was has is, delivered.”. [Burk Pence, been rule this State. v. Sheppard, 179 Akins 382; Elliott Mo. v. 339; l. c. Mo. 702 COURT OF SUPREME _Keener Williams._^ original Adams, 8.] Mo. l. c. The introduction of the properly acknowledged deed, as it in was, evidence, prima-facie plaintiffs, case for and no error com mitted proof the court in nisi admission its without further delivery.

of its execution and Appellants II. contend that the trial in court erred finding for the defendant on the Lewis Williams is- sue plaintiffs’ reply raised his answer and thereto, as to delivery the execution and of the H. deed to W. finding the of the trial court plaintiffs against weight is of the evidence con- trary to all the evidence. long It has been the established in State law this impekch that, in regular upon order to a deed, its face properly acknowledged, proof be must ' satisfactory. Shep °-*-earan<^- In Elliott v. WeigRt^f pard, 179 Mo. l. c. we have said: “This Evidence. spoken in a number court] no cases, has uncertain terms as to the nature and character testimony which will warrant the of the overthrow force duly acknowledged, ap- effect of all deed, of which pears regular upon expressions its face. The of this appellate well court, as the other are uniform courts, n —that to warrant finding that such and certifi- acknowledgment cate is untrue, the evidence must he satisfactory.” [Vide cited.] clear and there cases testimony Upon say adduced we cannot proof prima-facie sufficient to overcome the case made by plaintiffs introducing original quit-claim deeds say finding in evidence. Nor can we of the learned against weight chancellor who tried the case is ques- evidence. We must hear-in mind that the deeds tion been of record in the office of the Recorder of County thirty-two of Christian for more Deeds than years prior to the institution and trial of this suit. Time memory the human dims the mind, and, while there slight discrepancy some of the vari- yet in the main there is witnesses, ous substantial testi- mony question .that the effect were exe- OCTOBER. TERM, Williams.

Keener v. recorded were forthwith cuted and delivered, delivered who and returned mail to Lewis Williams, Nancy, saying, deeds,” the “Here are them to his pres- presumably Nancy, were read to safe-keeping placed ence of the husband, jointly and wife. a trunk the husband used in this were found trunk admits himself, after wife’s death. his

Appellants tends to show the evidence intimate that forged. not so We do the to W. H. was Titteringfon denies the record. True, read witness the. testi- but his deed, the he attested the execution of that mony says, positive, best he for at a whole is far from as signature, genuineness “I of when about the his asked of ever remembrance don’t don’t have think it is. I having signed a witness. If the deed as my writing.” signature the other On didn’t resemble signature of the other testified the witnesses hand, genuine, public, notary one disinter- is Baker, J. J. signature attest- testified that ested witness of very ing “looks T. on the deed witness Grammer W. (cid:127) signature.” much like his . give testimony, appellants weighing us to ask In acknowledgment of no credence to the certificate little or they express notary public, because Baker, of, as notary, aspersions cast on the character of “the it, country supper who had to leave the between Baker, But has never since returned.” and breakfast and Baker evidence to the effect that while there is some pros- departure because threatened made a hurried equally felony, clear that evidence is ecution for a departure woman, “affair” with a due to an his matfevs. business reason of some dereliction upon bearing has little or no The referred genuineness of ac- of Baker’s certificates or truth knowledgment. prima-facie plaintiffs’ appellants say

Again, proof of. of Lewis Wil- overthrown reason case per- possession the land and his continued liams’s positive management coupled with the thereof, sonal SUPREME, COURT MISSOURI, OE Keener Williams.

proof always paid that he had the taxes thereon receipts received own name and not in thereof name of wife. But the conclusive that evidence together Lewis and Williams lived husband as occupied and wife on the until land death and wife’s the same as their homestead. Lewis tilled the soil While spouse Nancy, and harvested the increase, faithful a.sshe performed was, the household and, said, duties “helped to take care what I made.” The mere fact tax officers assessed the land the husband’s paid name taking receipts and he the taxes thereon, plaintiffs’ prima- name, his facie is not sufficient overcome > case. non-delivery Was there sufficient evidence of prima-faeie deeds to ovei’comethe evidence their exe delivery by cution and reason of their introduction in evidence under the statute? We there not. find W. grantee IT. first deed, admitted his testimony acknowledged he that executed and the second conveying Nancy deed to land Williams. While ho says he saw never the first deed neither deed was possession, ever his it is not conceivable that would acknowledge property conveying execute and a deed to any legal equitable which he tion in title. Ilis ac immediately re'conveying Nancy the land to Wil acceptance an liams was tantamount to delivery assent to and of conveying the first deed land to him. It delivery not essential to constitute a is valid deed grantee delivery manual be to the himself. It person be if to use, will sufficient made another for his acceptance presumed. an [Hall will be Hall, v. delivery may 108.] c. Besides, Mo. l. of deed be con delivery complete is actual, as when well structive the parted grantor oyer with has his dominion it, pass grantee, provided intent it shall to the latter v. [Standiford 97 Mo. c. Standiford, 238.] assents. l. prove There is sufficient evidence the record to accepted Nancy delivery to assented Williams conveying the to deed land her. testimony

Neither we do deem the of Lewis "Williams prima-facie sufficient to overcome the force and effect of the deed to all knowl- W. H. Williams. While denies edge of its execution, either himself or wife, he party seeking impeach testimony the deed. His must light be considered of that fact. The voice of Nancy, wife, sealed death. The of other prove acknowledg- witnesses tends to the execution and ment of the deed. equity

The suit was tried as one court before the nisi. While this court has the whole record equity may must come here for review in so that we cases weigh and decide the novo, same de nevertheless where credibility an issue fact rests of the witnesses, usually finding court will defer chan- many opportunities, necessarily cellor, who has denied seeing hearing us, the witnesses themselves, observing testifying, their demeanor while and of deter- mining mony. weight properly which to their testi- attaches

[Creamer 473.] 214 Mo. Bivert, controversy III. Were the two deeds in or in void pass ownership effective out of Lewis into Williams Nancy, want of -consideration1? Consideration. upon Both con deeds, their recite a face, sideration of H. he re $3,000. W. Williams testified ceived no for his Williams consideration property” paid and that he con “never a dollar for the veyed to him. Likewise, testified: “I get didn’t the these deeds mentioned and never $3,000 $3,000 saw at one time.” On the other his son hand, by Jefferson his Williams testified he was told go “get father and mother to to Horn Melton’s officeand money.” the Horn roll Melton handed him a of bills which then handed to his mother and he “understood roll this of bills the consideration the deed.” for Appellants claim that the of Wil Jefferson beyond preposterous is so liams as be belief. With denying- premise, granting or out either neverthe Sup.—45. 307 Mo.

706 OF SUPREME COURT of a less, deeds themselves recite consideration and a want consideration cannot- be shown $3,000', of purpose against in de the recitation the deed for the of operative feating [Bobb Bobb, of deed. v. words 471.] v. 276 Fur 411; 89 Mo. Mo. Crenshaw, Crenshaw purpose of the effect and evident deeds thermore, convey to transfer the title from husband or conveyance raises the wife. to wife A husband presumption [Darrier gift a that it. is advancement. sup 222.] therefore, 58 It be Dander, not, v. Mo. need ported by a valuable consideration. appellants Finally, testi

IV. contend if the that, mony and de to the effect that the were executed protecting purpose Besuiting livered for the against payment taken of debt be Trust. Williams implication by resulting trust then a arose true, as and, therefore, wife, of Lewis law favor Nancy, by But, the record title him. held “To 243 Mo. 278: Morris, in Medlin v. l. c. this court put title to into her husband the of a wife and divest out by solemnly the -con evidenced deeds taken real estate acquiesced in) long' (a in the name consent sent both proof prove high stringent a re demands prove sulting for evidence trust calls trust. To such convincing, altogether cogent that the chan so clear, implied very say an on cellor can conscience beyond question.” ef any To like serious trust exists Gammage 366, 241 Mo. Keef, fect are Williams v. J., As said W. 469. Latham, v. S. Sherwood, sufficiency speaking v. 86 Mo. Shaw, Shaw resulting evi “Such trust: evidence establish of dence nigh character.” conclusive its be must well require meeting falls far here short evidence The foregoing rulings cases. our established ments resulting when cannot arise trust Besides, supposed bottomed trust which transactions pur origin fraudulent their appear have had Ed.) [Perry (6 165; Sell v. sec. pose. West, on Trusts 176.] 216 Mo. Derry Fielder, Mo. 621; There is substantial evidence that Lewis conveyances was indebted at the time of the reason of having signed obligations arising certain notes or out purchase of the of wheat. One testified to witness meeting held át a store Marionville attended Horn persons Melton and several other interested the wheat “pretty transaction. He was sure that Uncle Lewis was at advising that conference and were about mak- ing party a deed to some other fair for a consideration of property and then to have it deeded back to their thought wives.” He also said he “Uncle wás one Lewis persons amade deed.” One Wil- daughters liams ’s testified that she asked her how father happened he replied, to make the deeds, and that he “To security beat the wheat debts and some debts.” Another daughter testified that her father and mother had talked' having about deeds and went to town for that purpose “they going said to make the keep deeds to beat that wheat debt, to beat it and from paying party it.” H. Williams, W. in both named deeds, said Jefferson Williams came to him into, “his father was some trouble about some notes that change, in the wheat trouble and he wanted to get his land out of these notes, save father from paying the notes.”

Appellants denominate the wheat transaction as say “swindle,” and there is no evidence to show that evading, attempting Lewis Williams was or to evade, any just consequently debt, execution a fraud creditors. But the record is respect to the silent exact nature of the indebt- edness of innocent whether notes had fallen into the hands

purchasers maturity value before and, In hence, were free defenses. fact, having paid one of the notes, and said he admitted “didn’t know what

became of the other one, nor who it.” fellow held name equity maxim is that who in-

A cardinal comes equity party come with clean hands. must When a OE COURT SUPREME v. Williams.

Keener hindering purpose de conveyance or for the makes feating other fraudu creditor, claim party purpose, it found equity where leave the lent will deny [Creamer Bivert, asks. v. him arid the relief 473; 176.] Derry 216 Mo. Fielder, 214 Mo. judgment findings of the trial find that the We supported all evidence case, court are judg- being'no record, error in the reversible there Lindsay, concurs. G., affirmed. ment is opinion foregoing by Seddon, PER CURIAM:—The opinion adopted court. All of as the except C., is sitting. judges Atwood, J., concur, out of which notes as “a without tion proof of the exact nature of the transaction or whether the notes passed purchaser. to innocent 1210; 1, Evidence, 1144, 2, Deeds, 22 C. J. to Headnotes: Citations 123; 548, 4, Deeds, Wife, 550; and 18 Husband 30'C. 3 C. J. 18 J. C. 95; 7, Cyc. 99, Witnesses, 2653; 6, Deeds, 123, 8, 274; 40 1®C. J. 5 and J. J, 2868; 9, Evidence, 1557; 10, Error, Appeal 22 Husband C. J. 4 C. 298; 12, Trusts, Cyc. 166, Wife, 11 and 106. 30 C. J. Appeal Lawrence Circuit Court.—Hon. Charles L. Judge. Henson, Affirmed. (x. Hays Bloss, and A. Walker for H. H. Purd N. appellants. finding (1) erred not for the The court defend- pleadings by raised the issue the ant Keener Williams. While it that the as to the execution the deed. true recording notary, taken certificate of the when prima-facie execution of of the of the evidence deed, recording- and the effect this certificate deed, weight great testimony, by the of the are overcome viz, subscribing only at- (a) the denial witness who having as to or wit- tended the trial his ever (b) aspersions signature; cast nessed maker’s notary, J. had to Baker, on the character of the J. who country supper breakfast and between has leave possession (c) the continued returned; never since payment by him of taxes to Uncle assessment Lewis, prerogatives all and evi- as well exercise of as his ownership, alleged dences of after the execution of payment alleged aof consideration of deed and the $3000 security; (d) without the instru- loaned cash, handwriting thereon, ment itself and the contained body prepared instrument, of the show notary, alleged subscribing witnesses or Henry Williams, Baker, not that of J. J. it was Titterington suggests in G'rammer, Dr. or T. which W. way; (e) have been that of no it must uncertain according H. to the who, Jeff Williams W. according that of “framed” the deal and Douglass, deed—had the deeds had “framed the fixed Otis father;” Lewis, the denial of Uncle save interrogated by all the witnesses who who is shown high along had a sense of honor and to have line, absolutely very reputation. good These facts to bear a any presumption because of of execution overcome Notary’s 1919, sec. R. S. certificates. Recorder’s

Notes

notes debt, given negatives possible in a Bohemian wheat deal, regularly claim if transfer, made, was intended gift either as an advancement. If their property conveyed actually is taken as true and Henry purpose, for this to save viz., unjust necessity litigation, Williams from then when conveyed it should been him. have back to Har- ceased, rier Mo. Harrier, 233; Havis, Iowa, Havis v. Page respondents. & Barrett for Supreme (1) conflicting, Where the evidence is equity finding Court in will cases defer.to

father into trouble about notes said some he his way. sigmed wheat trouble some that he you A. Yes, and he said sir, Jeff told that? ££Q. change, get notes, land out of these his he wanted paying notes, as I understood father from to save help if him out and I me I would and he asked it, would. say it, did he his father wanted do ££Q. Did sup say A. Well, it, he to do wanted Jeff? pose granted father. that it was it for taken—I granted? A. it for Yes. You took ££Q. A. there? his father No, his father ££Q. Was wasn’t there. papers, his father You never saw ££Q. (cid:127) A. no sir. not, I did this deed?' Nancy Williams, wife of Lewis Wil Was ££Q. supposed A. not. I She was at that time? liams, there all interceding through time that Uncle Lewis was say but Jeff, I never heard him that. When

Case Details

Case Name: Keener v. Williams

Court Name: Supreme Court of Missouri

Date Published: Apr 13, 1925

Citation: 271 S.W. 489

Court Abbreviation: Mo.