The plaintiffs brought this suit in the Circuit Court of St. Francois County to set aside and cancel a deed to, and to partition, about 578 acres of land situate in that county. The trial resulted in findings of fact and a decree for the defendants. In due time and proper form the plaintiffs duly appealed the cause to this court. *Page 185
The facts are undisputed, except as to the delivery of the deed, which are as follows, and the evidence bearing upon the delivery will be fully stated later.
The plaintiffs are sons and a son-in-law and seven grand-children of James F. Meador, deceased, and the defendant Anna Meador is his widow. The other defendants are the four daughters of James F. Meador, deceased.
The deed sought to be set aside is the deed of James F. Meador and Anna Meador to their five daughters, Minnie Atnip, Ninnie Ward, Callie L. Bell, Luna Chilton and Pearl Biggerstaff, by which said deed they conveyed to their said daughters all of the lands owned by both of them. Plaintiffs seek to set aside and cancel the said deed on the alleged ground of mental unsoundness of the grantor, James F. Meador, undue influence practiced upon him by the grantees in the deed and their husbands, and non-delivery of the deed.
The defendant Anna Meador (Demaris A. Meador) owned the legal estate in fee in 180 acres of the lands described in the deed sought to be set aside, and James F. Meador, her husband, now deceased, owned the remainder of the lands at the time the deed was executed.
Demaris A. Meador became the owner of the 180 acres of land by inheritance from her father, by deeds from her brothers, sisters and mother, and by partition between her and the other heirs of her deceased father, Conrad Kinder, all of which is admitted by plaintiffs by admissions made by them on the trial of the case.
Plaintiffs claim that the lands owned by Anna Meador (Demaris A. Meador) do not, in fact and in law, belong to her, or did not belong to her at the time of the execution of the deed to her daughters, for the alleged reason that she had previously conveyed all of her interest in said lands to her husband, James F. Meador, and, therefore, she had no interest or title in the lands to convey by said deed, and that the grantees received no title by the deed from her, and that the deed from James F. Meador is void for the reasons above stated. *Page 186
Defendants claim that the deed is valid and binding as a conveyance both as to James F. Meador and Demaris A. Meador. The defendant Demaris A. Meador, by her separate answer, claims that she was the owner of 180 acres of lands involved in this suit, and that she intended to convey it to the five daughters, and now intends for the deed to stand. The four living daughters, Ninnie Ward, Callie L. Bell, Luna Chilton and Pearl Biggerstaff, claim in their separate answer that the deed is valid and binding as to both James F. Meador's land and the land of Demaris A. Meador. Plaintiffs admit that at one time after Demris A. Meador became the wife of James F. Meador, deceased, and while she was living with him as his wife, she became the owner of the 180 acres of the lands involved in this action in her own right, but they claim that she conveyed the lands to her husband, James F. Meador, which is denied by all of the defendants.
James F. Meador and Demaris A. Meador, called "Anna Meador" in plaintiffs' second amended petition, were married August 22, 1872, and continued to live together as husband and wife from that date to the death of James F. Meador on the 4th day of May, 1919.
After their marriage to each other, and after Demaris A. Meador became the owner of the lands described in her separate answer, she executed two deeds to James F. Meador, by which she attempted to convey to him her interest in said lands, but both deeds are null and void and did not convey her interest in said lands to the said James F. Meador, because they were not acknowledged in accordance with the law in force at the time of the execution of said deeds.
The deed which plaintiffs are seeking to set aside in this action was executed by James F. Meador and Demaris A. Meador on the 26th day of March, 1918, before Chas. B. Ford, a notary public, in Patterson, Missouri. The deed was read to them by him, and Mr. Meador indicated to him that he wanted to execute the deed as written, which was accordingly done. Afterwards Mr. *Page 187 Meador gave the deed to Mrs. Meador and told her to keep it for the girls, which she did, as testified to by her, until the 1st day of May, 1919, when she delivered the deed to Ninnie Ward, one of the grantees therein, and directed her to have it recorded, which was done by her husband, C.C. Ward, on the 3rd day of May, 1919, and she testified that she delivered this deed as directed by Mr. Meador.
The plaintiffs have abandoned every ground alleged in their petition as a reason for setting aside said deed, except non-delivery of the deed, and make the claim that if the deposition of Mrs. Meador is excluded there is no evidence of delivery, but in making this statement they have completely overlooked the testimony of Ninnie Ward, one of their witnesses herein, which they brought out themselves, and which proves delivery of the deed in the lifetime of the grantor, James F. Meador.
Over the objection of the plaintiffs, defendants introduced the deposition of Anna Meador, the widow, regarding the delivery of the deed of James Meador, and herself to the defendants, to which action of the court the plaintiffs duly excepted.
I. As previously stated the plaintiffs abandoned the charges that the grantor, James Meador, was mentally unsound, and that he executed the deed under the pressure of undue influence, and went to trial upon the sole charge that there was no delivery of the deed by the grantor to the grantees. This of course brings us to the consideration of the question of the delivery of the deed mentioned. There is no dispute as to the facts that the grantors in the deed signed the deed, and duly acknowledged the same, and that thereafter the notary who took the acknowledgment handed it back to James F. Meador, one of the grantors, who took it home, and placed same in a box or drawer in the dining room with other of his papers.
The next appearance of the deed in this record was on Thursday, May 1, 1919, before the death of the grantor on Sunday, May 4, 1919. It was then in the drawer *Page 188 where the grantor kept his papers and was taken therefrom by his wife and given to Mrs. Ward, one of the grantees. The entire testimony covering this alleged delivery of the deed is given by Mrs. Ward as follows:
"Q. You have told me that at one time there was a conversation in which your mother told you that they had made a deed to you girls, and as I understand you that is all that was said at that time. Now, was anything ever said by either your father or your mother to you after that time? A. After what time?
"Q. After this one time you referred to? A. Why, not until just before he died.
"Q. What was then said? A. Mother gave the deed to me and I gave it to my son and he gave it to my husband.
"Q. Now, let me see if I understand you correctly — just before your father died what happened?
"MR. ING. I object to that question because it is not an issue in this case.
"Q. Now, you will please tell us what it was that was said? A. Mother said that father said to have the deed put on record, and she gave it to me and I gave it to my son and he gave it to my husband.
"Q. How long was that before your father died? A. That was on Thurday and he died Sunday morning at two o'clock.
"Q. Did your mother say when your father had told her to have this deed put on record? A. I don't know.
"Q. Did she tell you when your father had said this? A. I don't remember.
"Q. Was your father conscious at the time of his death? A. Yes, sir; plumb up until he couldn't speak. He knew everything.
"Q. Did you say anything to your father about this? A. No, sir; I didn't know they had made the deed until he told us about it.
"Q. Until he told you? A. Until mother told us, I mean. *Page 189
"Q. Where was the deed when you first saw it? A. Mother gave it to me.
"Q. Where did she get it from? A. She got it from among the papers.
"Q. Where was she when she gave it to you? A. In the home.
"Q. In what part of the home? A. In the dining room, I believe — wasn't it, Pearl?
"Q. Who else was present? A. My sister.
"Q. Just you two? A. Yes, sir.
"Q. Now, will you tell me everything that was said in that room about the deed? A. I don't know as I could remember and tell everything. Nothing happened only just what I have told you.
"Q. Have you told all that was said at that time? A. Yes, sir.
"Q. Is that all that you can recall that was said? A. That is all that I can remember.
"Q. Did you see your mother get the deed from among the papers. A. Yes, sir.
"Q. Where did she get them? A. Among the papers in the box where they were kept.
"Q. And this was in the dining room? A. Yes, sir.
"Q. And they were among your father's papers? A. Yes, sir.
"Q. And she took it out from among his papers and gave it to you? Is that correct now? A. Yes, sir.
"Q. Had you ever seen the deed before she gave it to you? A. No, sir.
"Q. Did you ever hear your father say anything to your mother about it A. No, sir.
"Q. Where was your father at the time your mother gave this deed to you? A. He was in the dining room, too.
"Q. Did your father see the deed in your possession? A. I don't know. *Page 190
"Q. You say that you never mentioned the deed to your father and he never mentioned it to you? A. Yes, sir.
"Q. Did you ever hear anybody else say anything to your father about it? A. No, sir.
"Q. You say the first time you ever saw the deed, it was among your father's papers? A. Yes, sir; I saw her take it out from among them and hand it to me.
"Q. And after you got hold of the deed then you turned it over to your son and he delivered it to your husband? A. Yes, sir; he gave it to my husband"
Upon the trial of this cause, as previously stated, defendants offered in evidence the deposition of Anna (Demaris A.) Meador, the wife of deceased, to whom there was reserved a life estate in all of the land described in the deed. Plaintiffs objected to the admission of this testimony upon the ground that the witness was a party in interest within the meaning of the statute excluding the testimony of such a witness when the other a party to the transaction is dead. The court admitted the deposition in evidence, and considered it in determining the issues. Said witness testified that deceased, upon returning to his home after deceased and said witness had acknowledge the deed before the notary, turned it over to her, his wife, to keep for the girls. She further testified that on the Thursday morning before his death deceased told her to give the deed to the girls, that it might be recorded. This was the only evidence in the entire record showing or tending to show any delivery of the deed by James F. Meador.
Defendants set up in their answer that certain of the land described in the deed was the property of Demaris A. Meador in her own right, the same having descended to her from her father's estate. The record shows that Demaris A. Meador, the wife, undertook to convey this land to her husband, the deceased, but defendants contended and the court held that the conveyances whereby the wife undertook to transfer the fee in said land to her husband were void, and that therefore *Page 191 Demaris A. Meador was the owner of the fee to said lands at the time of the execution of the deed in question. Plaintiffs, on the other hand, contended and do contend that deceased was the owner of the fee in all of said land at the time of such conveyance. The court rendered and entered the decree adjudging that the deed was duly delivered prior to the death of James F. Meador, and that it was a good and valid conveyance of all of the land described in said deed.
"Counsel for the plaintiffs objected to the testimony of Anna Meador, the widow of James F. Meador, and one of the grantees in the deed in controversy, because she was incompetent to testify, because her husband, the other party to the deed, was dead, and therefore under the statute she was disqualified to testify in the case. [Sec. 5410, R.S. 1919.]
As I understand counsel for the defendants, they try to escape the effect of this objection by showing that of the five hundred and seventy-eight acres of land conveyed by the deed in controversy, one hundred and eighty of it belonged to her and therefore she was a competent witness to testify on account of her own substantial individual interest, independent of the life estate she acquired from her husband under the deed in controversy, to the remaining 398 acres. Counsel for the defendants also try to make a distinction between the word "reserved" used in the deed, and the word "grant" or "convey" had the husband intended to convey said life estate to his widow.
In our opinion this is a distinction without a difference. That deed as it stands unchallenged is and was sufficient, for all practical purposes, to give and convey to her the life estate in that part of the land which belonged to the husband as completely as if the words "grant" and "convey" had been used therein.
I think there is no real merit in this branch of the contention.
As regards the first branch of the same contention, namely, that the widow was a competent witness on account *Page 192 of her substantial individual interest, the subject-matter of the deed, is in our opinion more plausible than sound.
It must be remembered that this deed is of two-fold nature: (a) it undertakes to convey the wife's one hundred and eighty acres, (1) a life estate to her, and (2) the remainder in fee to his and her daughters; and (b) the remaining 398 acres, (1) a life estate to her, and (2) the fee therein to his and her said daughters.
Before proceeding further with this branch of the case we must dispose of a preliminary matter and get it out of the way so we will not be confused by it in the discussion of the question we were dealing with. The record discloses that the deeds long before made by the wife by which she attempted to convey her one hundred and eighty acres of land to her husband were not executed and acknowledged as required by law existing at the time of their attempted execution. This omission rendered her attempted deeds of conveyance to him absolutely null and void and consequently conveyed no interest in and to said land to him. [Jones v. Himmelberger-Harrison Lbr. Co., 223 S.W. l.c. 69; Powell v. Bowen, 214 S.W. 142; Evans v. Morris, 234 Mo. 177; Belo v. Mayes,79 Mo. 67; Bagby v. Emberson, 79 Mo. 139; Wannell v. Kem,57 Mo. 578.]
Since those deeds were void and conveyed none of her interest in her lands to her husband, and since the pleadings in this case in no manner attempt to deprive her of any of her interests in and to her said one hundred and eighty acres of land, we may put it aside and banish it from this case, for otherwise it would only tend to confuse.
Returning to the question we were considering when we departed to dispose of the preliminary question before mentioned: namely, was the widow a competent witness, because of her substantial interest in the subject-matter of the deed and litigation? We have just eliminated all of her substantial individual interests from this deed and litigation, as previously shown. *Page 193
The defendants, the widow and daughters, are asserting title to the remaining three hundred and ninety-eight acres of land mentioned, by means of the deed in controversy and by that means only, she, a life estate, and they, the remainder in fee, and James F. Meador, the other party to that deed, contract and cause of action in issue and on trial, being dead, brings her squarely within the letter and spirit of the disqualifying statute.
This conclusion does not conflict with or overrule the doctrine laid down in the case of Fugate v. Pierce, 49 Mo. 441, which holds that it was not the intention of this statute to exclude the testimony of the wife when she is a substantial party to the suit, whether joined with the husband or not.
Her interest there mentioned means her individual interest, separate and distinct from any claimed through her husband by means of the contract in issue and on trial, and not, as in this case, where she acquired at least a life estate in some three hundred and ninety-eight acres of land belonging to him by means of the deed in controversy, the validity of which depended upon his testimony. Had she been called upon to testify regarding the one hundred and eighty acres of land she owned, and which was included and conveyed by the same deed, quite another question would then confront us.
I therefore hold that the testimony of Mrs. Ward was hearsay, pure and simple, and had no probative force whatever, and that Anna Meador, the wife or widow, was disqualified as a witness in the case, and that the ruling of the court in admitting those two witnesses to testify was erroneous.
II. Were it not for Section 5415, Revised Statutes 1919, the error pointed out on Paragraph I of this opinion would be reversible. That section, in so far as here material, reads: "No married woman shall be disqualified as a witness in any civil suit or proceeding prosecuted in the name of or against her husband: . . . third, in all matters of business transactions when the transaction *Page 194 was had and conducted by such married woman as the agent of her husband." Mrs. Meador, the wife and widow of James F. Meador, the grantor of the deed, testified that "upon returning to his home after deceased and she had acknowledged the deed before the notary, he turned it over to her, his wife, to keep for the girls." She further testified that "on the Thursday morning before his death deceased told her to give the deed to the girls, that it might be recorded."
This testimony clearly comes within the last section of the statute mentioned and under the repeated decision of this court the ruling of the trial court was clearly correct. [Reed v. Peck,163 Mo. 333; Leete v. Bank, 115 Mo. 184; Orchard v. Collier, 171 Mo. l.c. 399.]
This testimony of the widow was uncontradicted, but upon the other hand was corroborated by the facts that they signed, acknowledged and retained the deed long after it was executed, and down to its actual delivery.
Finding no error in the record, it follows that the judgment of the circuit court should be affirmed. I therefore concur in the result.