Opinion
No. 43192.
July 13, 1953.
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY, WILLIAM R. COLLINSON, J.
A.T. Parrish and E. C. Hamlin, Springfield, for appellants.
John B. Newberry, Springfield, for respondent.
This is a suit to set aside two deeds: a deed executed on May 31, 1946, by I. E. Stoops and his wife, Lucy, conveying seven lots of real estate in Springfield, Greene County, Missouri, to O. S. Bradley, and a deed executed by O. S. Bradley and wife, dated December 24, 1948, conveying the same lots to I. E. Stoops and his second wife, Bertha Stoops. A trial resulted in a judgment for the defendant Bertha Stoops and plaintiffs appealed.
The plaintiffs in the case are Lucy Stoops, first wife of I.E. Stoops, and the children of that marriage. The defendant is the second wife of I.E. Stoops.
This suit, filed on September 21, 1951, as above-noted, was to set aside the two deeds, that of May 31, 1946, whereby I.E. and Lucy Stoops conveyed property to O. S. Bradley, and that of December 24, 1948, whereby Bradley conveyed the property to I.E. Stoops and his second wife, Bertha. The grounds relied on to set aside the first deed are nondelivery of the deed, lack of consideration, fraud, duress, and that I.E. Stoops was of unsound mind at the time of the execution of the deed. In the case of the second deed, the ground relied on is that Bradley received no title by the first deed and, therefore, the second deed should be set aside.
At the time the first deed was executed, the grantors therein were husband and wife. On June 3, 1948, I. E. Stoops was granted a divorce from Lucy Stoops. The decree awarded the custody of their children to I. E. Stoops. The title to the lots conveyed by the first deed was held by the grantors therein as owners by the entirety. After the divorce, I. E. Stoops married the defendant in this case. On December 24, 1948, O.S. Bradley conveyed the lots in question to I. E. and Bertha Stoops, husband and wife, thereby creating an estate by the entirety. On August 1, 1951, I. E. Stoops died. As aforementioned, this suit was filed on September 21, 1951.
The trial court found that the first deed was recorded on the day it was signed; that the grantee, Bradley, was told about the deed; that in law the deed was delivered. The court found that Stoops did not defraud his wife, Lucy, and that she did not sign the deed under duress; that Stoops was of sound mind when he signed the deed. The court further found that Lucy Stoops was guilty of laches in bringing her suit. These are the questions presented to us for our review on the merits of the case. The question is also presented whether Lucy Stoops was a competent witness. We shall dispose of this question before considering the merits of the case.
Plaintiffs claim that Lucy Stoops was a competent witness while the defendant says that, under what has been termed "The Dead Man's Statute," Section 491.010, V.A.M.S., I. E. Stoops being dead and Lucy Stoops being the other party to the cause of action in issue, she was not a competent witness. Plaintiffs in their brief say that a husband or wife may testify against each other where the issue is fraud as between them. They quote from Hach v. Rollins, 158 Mo. 182, 59 S.W. 232, loc. cit. 234(2), cited with approval in Brooks v. Brooks, 357 Mo. 343, 208 S.W.2d 279, loc. cit. 283(2, 3) 4 A.L.R.2d 826: "`This doctrine of necessity prevails in Missouri, and the rule is established that a husband or wife is a competent witness, ex necessitate, as to conversations between them, in order to expose a fraud that was perpetrated by the husband on the wife.'" Plaintiffs state further that Lucy Stoops was not the other party to the contract (meaning the first deed in this case); that she was a grantor with her husband and the other party to the contract was Bradley who was living at the time of trial. If Lucy Stoops had filed a suit against her husband while he was living to set aside the deed on the ground of fraud or duress on the part of her husband, she would have been a competent witness. The above quotation from Hach v. Rollins, supra, states the rule correctly. The suit was not filed until after the death of the husband and, therefore, the statute disqualified her as a witness. Plaintiffs are correct when they say that Lucy Stoops was not the other party to the deed within the meaning of Section 491.010, supra. However, the present suit is not a suit based on the contract or deed but is a suit to set aside the deed for fraud and duress. Lucy is the other party to the cause of action. In other words, this is a suit primarily between Lucy Stoops and her husband, now deceased. We hold the statute applies. Cloves v. Cloves, Mo.Sup., 239 S.W. 145, loc. cit. 147(1); Meador v. Ward, 303 Mo. 176, 260 S.W. 106; Bussen v. Del Cummune, 239 Mo.App. 859, 199 S.W.2d 13. The trial court permitted Lucy Stoops to testify as to all matters except those concerning the deed in question. The trial court was correct in so ruling. Elsea v. Smith, 273 Mo. 396, 202 S.W. 1071, loc. cit. 1073(1, 2) (3).
Was there a delivery of the deed? The evidence was that I.E. Stoops had the deed recorded and the deed was thereafter in the possession of Mr. Stoops. Bradley was notified of the deed a few days after the execution. Bradley testified that he agreed to hold title and reconvey the lots whenever Mr. Stoops directed him to do so; that before the divorce was granted, Lucy Stoops requested him to reconvey the property to the Stoops but that he refused to do so unless he received instructions from the husband. In the case of Jones v. Jefferson, 334 Mo. 606, 66 S.W.2d 555, loc. cit. 557-560(5, 6), the court held a deed to have been delivered in circumstances similar to those in the present case. There, as here, the deed was recorded and then retained by the grantors. The grantee had agreed to reconvey when the stormy atmosphere in which one of the grantors found himself had cleared. The court reviewed the question at length. The court concluded as follows, 66 S.W.2d loc. cit. 560: "When we consider the history and significance of the solemn public ceremony of livery of seizin in transferring title to land, and that under our registry acts the recording of a deed by the grantor himself takes the place of and has the force and effect of livery of seizin, it certainly requires more than the mere assertion of a secret intent that the title should not pass in order to show a lack of delivery of the deed." The trial court was justified in finding that there had been delivery of the deed here in question.
Plaintiffs say that the trial court erred in holding that Lucy Stoops was guilty of laches for her delay in bringing this suit. Lucy Stoops testified that "a long time before we was divorced" she requested Bradley to reconvey the lots to her and her husband; that Bradley told her "when Mr. Stoops give him orders to, why, he could do that." Bradley gave evidence of like import. On June 2, 1948, the day before the divorce was granted, Lucy Stoops signed an agreement settling her property rights and she accepted $3,300 "as full payment and release and in lieu of her claims against the Plaintiff for dower, alimony, and child support." The record is silent as to any claim being made by Lucy Stoops of any interest in the lots after her request that Bradley reconvey the lots and his refusal until the filing of this suit in September, 1951, about 5 years after the first deed was executed. A ruling on whether Lucy Stoops was guilty of laches is not necessary on this appeal. The conduct of Lucy Stoops tends to refute her claims that she signed the deed through fear of her husband or that she was induced to sign because of fraud on the part of her husband. If she had signed the deed under such circumstances, is it not reasonable to suppose that she would have made complaint at the time she was making a settlement of her property rights?
In plaintiffs' last point briefed, they say that the trial court should have found that I. E. Stoops was insane at the time he signed the deed conveying the property to Bradley. Plaintiffs say the reason given by the deceased for deeding the property was strong evidence of insanity. The reason, as shown by the evidence, was that Stoops was having family trouble and was afraid he was going to be sued. Bradley testified that Stoops told him that he was deeding the property for the protection of his family. Plaintiffs say further that Stoops was laboring under an insane delusion, that is, that he "had insane delusions that someone was going to sue him and take his property away from him." The evidence was that the deceased stated he was afraid that his wife and a Mrs. Stuart were going to get his property. It was further in evidence that Mrs. Stuart was a close friend of the wife, Lucy. The evidence showed that Stoops was much perturbed and worried over his troubles with his wife. There was evidence of threats on the part of Stoops; that he was going to kill his wife and the man he accused of breaking up his home. On one occasion, he took a shotgun and went to look for the man but someone notified the man of Stoops' intention and so the man, instead of standing his ground and doing battle, hid himself and was not found. It is evident that the worries of Stoops were not insane delusions but were based on substantial facts. Many a man has been financially crippled in divorce proceedings. In this case, Stoops was granted the divorce and the custody of the children and the wife signed a stipulation that she would not visit the children. That indicates that Mr. Stoops was the injured party. A number of witnesses testified that Stoops' conduct on several occasions indicated he was of unsound mind. The evidence, however, showed that all of this had its foundation in the family troubles and nothing more. The trial court would not have been justified in finding Stoops to have been of unsound mind.
We have disposed of all points briefed and have reviewed the case de novo. We have reached the same result as the trial court.
The judgment is affirmed.
BOHLING and BARRETT, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court.
All concur.