This is a suit in equity for the cancellation of a deed and incidentally for the partition of the real estate therein described.
On March 25, 1918, James F. Meador and Anna Meador were husband and wife. They had two sons, Adolphus Meador and J. Frank Meador, and five daughters, Minnie Atnip, Ninnie Ward, Callie L. Bell, Pearl Biggerstaff and Luna Chilton. Between them they owned 578 acres of land in Wayne County, he having the legal title to 398 acres and she the title to 180 acres. On the date mentioned they signed and acknowledged a deed purporting to convey the entire tract of 578 acres to their five daughters. The deed was one of general warranty. Except in the particular presently to be noted it followed literally in its verbiage that found in the blank printed form in general use in this State for drawing general warranty deeds. Meador and his wife were described as "parties of the first part" and the daughters above named as the "parties of the second part." The consideration expressed was "the sum of natural love and affection and the sum of one and no/100 dollars." Immediately *Page 180 following the description of the lands which constituted the concluding part of the granting clause, this language was inserted:
"It is herein stipulated and understood that the said parties of the first part are to have the peaceable possession of the premises herein described, for and during their natural lifetime."
The deed was filed for record by Ninnie Ward, one of the grantees, May 3, 1919. On the following day James F. Meador died intestate, leaving surviving him a widow, said Anna Meador, and the sons and daughters above named as his only heirs at law. Subsequently his daughter Minnie Atnip died leaving seven children.
On December 1, 1919, the two sons of Meador and the children of his deceased daughter instituted this suit against the four surviving daughters and the widow. As grounds for setting aside the deed from Meador and his wife to their daughters, the petition charged mental incapacity on his part and undue influence on theirs, and further, that the instrument had never been delivered by him. The answers of the defendants put all of these matters in issue. In her separate answer the widow, Anna Meador, claimed "the exclusive right to the possession, use, benefits and profits of all said lands as long as she shall live, under the provisions of said deed." Her co-defendants claimed title under the deed "subject only to the right of the exclusive possession, the sole use, profits and benefits of all the lands described in the deed in the defendant Demaris A. (Anna) Meador for and during her natural lifetime."
At the trial below plaintiffs abandoned all the grounds upon which they sought a cancellation of the deed except that of non-delivery. On that issue they offered the deposition of Ninnie Ward, one of the defendants, in the giving of which she testified, in substance, that during her father's last illness, a day or two before he died, her mother took the deed out of a box in her father's house, in which he kept his papers, and gave it to her; that she never saw the deed until that time; *Page 181 that she did not know whether her father ever knew that the deed had been given her. Defendants then offered the deposition of the defendant Anna Meador. When the offer was made the following colloquy between counsel occurred:
"MR. ING: The Court please, we offer next the deposition of Demaris A. Meador.
"MR. HAY: The widow of the deceased James F. Meador?
"MR. ING: Yes, sir.
"MR. HAY: And one who, under the deed, has a life interest in this land — that is true?
"MR. ING: A life interest."
Plaintiffs then made the following objection to the proffered testimony:
"We object to the testimony of this witness for the reason that under the provisions of this deed she is one of the parties in interest, having a like interest under and by virtue of the provisions of the deed, and the grantor conveying the fee of the estate in which she has a life interest being dead. Any testimony on the part of this witness would be incompetent."
The court first ruled that the witness was incompetent, but subsequently admitted her testimony. With reference to the execution of the deed it was as follows:
"Q. What was done with the deed after you and Mr. Meador signed it before Mr. Ford A. He come home and gave it to me to take care of for the girls.
"Q. Did you take care of it for the girls? A. Yes, sir.
"Q. State where the deed remained, in whose care and custody, who had it in their possession after it was delivered to you? A. I put it in a box with his papers.
"Q. Who had charge of it, who kept it? A. I did.
"Q. What was done with the deed a short time before Mr. Meador died. A. He told me to have it put on record, on Thursday morning before he died.
"Q. On what day of the week did he die? A. Sunday morning. *Page 182
"Q. What did you do with the deed after your husband told you to put it on record? A. I taken it and given it to Ninnie Ward.
"Q. What did you tell her to do? A. I told her what her papa said — to take it and have it put on record."
The trial court found that the deed in question had been duly delivered by James F. Meador in his lifetime, and adjudged that under the provisions of that instrument defendant Anna Meador had a life estate in all the lands therein described, and the remaining defendants and the heirs of the deceased daughter were vested with the remainder in fee. Whereupon it dismissed plaintiffs' petition. From such judgment plaintiffs prosecute this appeal.
There is no question but that there was a delivery of the deed in controversy so far as Anna Meador, one of the grantors, is concerned. It is equally plain that it operated as a conveyance of her individual land, conveying the entire fee therein, save and except "the peaceable possession of the premises . . . for and during their (grantors') natural lifetime." It is as the deed of James F. Meador that the delivery of the instrument is questioned and put in issue. On this issue plaintiffs' evidence tended to show that Anna Meador took the deed from a box in which her husband kept his papers and without his knowledge, consent or acquiesence gave it to one of the grantees. This evidence fell short of showing a delivery as to him (Dallas v. McNutt,249 S.W. 35, 37), yet it was sufficient to destroy the presumption of delivery that might have arisen from the fact that the grantees were found in possession of the deed. This was the state of the proof when plaintiffs closed their case in chief. To meet this situation the defendants offered the testimony of Anna Meador, the surviving grantor. Her competency as a witness was immediately challenged by plaintiffs, and the ruling of the trial court with respect thereto constitutes the sole ground upon which they, as appellants here, seek a reversal of the judgment. *Page 183
In support of their contention that the surviving grantor in the deed sought to be set aside was incompetent as a witness, appellants invoke the statute which provides "that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead . . . the other party to such contract or cause of action shall not be admitted to testify in his own favor." In their brief they say: "The court will note that the ground of the disqualification of Anna Meador as a witness was and is not that she is the widow of James F. Meador, the grantor in the deed, but that she was and is a party in interest, and the other party thereto is dead." This brings the question within narrow compass. Reduced to its simplest terms, it is this: James F. Meador, a party to the deed, being dead, is Anna Meador "the other party" within the meaning of the statute?
On the face of the instrument James F. and Anna Meador constituted one party and their five daughters constitute the other party. But notwithstanding its recitals as to the parties to it, it is claimed that the deed if effective as a conveyance operated to convey to Anna Meador a life estate in the lands of James F. Meador, and that in so far as it was intended to perform that function he was one party to it and she the other. At the trial below both parties, and the court as well, seemed to take it for granted that the deed if given effect would convey to Anna Meador a life estate in her husband's lands. In this assumption they were clearly wrong. According to the terms of the deed the only persons to whom James F. Meador conveyed any interest whatever were his five daughters. The deed did not purport to convey to them the full fee it is true. There was excepted fromits grant an estate for and during the lives of Meador and his wife. The estate so excepted was not conveyed to any one. It remained in James F. Meador. At his death, his wife having survived him, the outstanding estate pur autre vie descended to his heirs. In view of the very full consideration given the applicable principles of construction in Lemon v. Lemon,273 Mo. 484, *Page 184 in which a similar deed was construed, it is deemed unnecessary to elaborate on them here.
As the deed did not purport to convey, and did not in fact convey, to Anna Meador any interest in the lands therein described, she was in no sense a grantee. Being on the contrary a co-grantor with her husband, she was not "the other party" to the contract, and hence not disqualified by the provisions of the statute heretofore quoted from testifying with respect to it. [Hill-Dodge Co. v. Loomis, 140 Mo. App. 62; Insurance Co. v. Broyles, 78 Mo. App. 364.] As her testimony was not challenged on any other ground it was properly received in evidence. With reference to its effect, it constituted adequate proof of the delivery of the deed by the two grantors.
As already suggested there is an estate for and during the life of Anna Meador in the lands of James F. Meador which, subject to the widow's dower, descended to his heirs, and which is therefore subject to partition among them. Anna Meador's age is not disclosed by the record, but the partitionable estate is doubtless of small value. Plaintiffs have not asked, and probably do not want, partition of such an interest. In any event they have not assigned error as to the ruling of the trial court that the life estate belonged to Anna Meador instead of James F. Meador's heirs. On the contrary they insisted at the trial, and urge here, that if the deed be given effect the estate is hers. On this state of the record the judgment nisi should be affirmed. It is so ordered.
All concur; Woodson, J., in separate opinion.