Cox v. Cox

725 S.W.2d 880, 1987 Mo. App. LEXIS 3727
CourtMissouri Court of Appeals
DecidedMarch 5, 1987
DocketNo. 14798
StatusPublished
Cited by5 cases

This text of 725 S.W.2d 880 (Cox v. Cox) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cox v. Cox, 725 S.W.2d 880, 1987 Mo. App. LEXIS 3727 (Mo. Ct. App. 1987).

Opinion

CROW, Chief Judge.

Arthur Joe Cox (“Joe”) filed this suit to reform a warranty deed executed October 30, 1974, by his father, John G. Cox (“John”). By that instrument, John conveyed to Joe certain land referred to at trial as “the old home place forty.” Joe’s petition averred it was John’s intent that the deed include an additional tract, referred to at trial as “the schoolhouse forty,” but that attorney A_, who drafted the deed, left out the description of that tract. The trial court so found, and entered judgment reforming the deed by adding thereto the description of the schoolhouse forty. This appeal, by certain defendants identified infra, followed.

John, a widower, died intestate February 12, 1984, 11 days short of reaching age 99. His wife, Bessie, had preceded him in death July 8, 1974. At time of trial,1 seven of John’s ten children were alive: Joe, Jack Cox, Johnny Cox, Virgil Cox, Starlin Cox, Ethel Hartley, and Anderson J. Cox. As to the three deceased children, one, as we understand the record, left no progeny. The other two deceased children were evidently survived by a total of five offspring: Murb Cox, Ray Cox, Velda Liles, Tom Cox, and Kathy Barnes.

Joe, in his petition, named as defendants the personal representative of John’s estate, and all of John’s living lineal descendants except himself.

While the cause was awaiting trial, Star-lin Cox executed a quitclaim deed, conveying any interest he had in the schoolhouse forty to Joe. During trial, Ethel Hartley, with leave of court, filed an answer consenting to judgment reforming John’s 1974 deed to Joe by adding thereto the description of the schoolhouse forty. That, as we have seen, is what the trial court did. All defendants except Starlin and Ethel appeal.

The scope of our review in this court-tried case is established by Murphy [882]*882v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976). The judgment will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.

The trial court’s findings included these: “The Court further finds by clear and convincing evidence that it was the intention of grantor John ... and grantee ... Joe ... to include in [the 1974 warranty deed] the description of [the schoolhouse forty], but that due to a scrivenor’s [sic] error said parcel was inadvertently omitted. The Court finds and determines from the evidence that there was a prior agreement between grantor and grantee commencing in calendar year 1956 and continuing up to the date of execution of said deed to the effect that John ... did promise to convey to son ... Joe ... said forty (40) acre parcel (referred to throughout the trial as ‘the schoolhouse 40’) at some time prior to his death. In reliance thereon [Joe] constructed at his expense a single family residence in which he raised his family for some years and rented out to third parties from time to time up to the date of trial of this cause. The Court further finds that on October 30, 1974 grantor John ... and ... grantee ... Joe ... did instruct the scrivenor [sic] to include said forty acre parcel in the afore-mentioned [sic] deed, but said tract was inadvertently omitted.2 The Court further finds that neither of the parties to said deed discovered the omission until after the date of death of grantor John ..., and that said omission constituted a mutual mistake between grantor and grantee.”

Appellants remind us that he who seeks reformation of a deed is required to establish, by clear, cogent and convincing proof, that there was a prior agreement to convey the land within the reformed description, and that there was a mutual mistake of fact in the preparation of the deed. Flaspohler v. Hoffman, 652 S.W.2d 703, 708[5,6] (Mo.App.1983). In segment “A” of their first assignment of error, appellants maintain that Joe failed to present clear, cogent and convincing evidence of an agreement between him and John whereby the latter was to deed both the old home place forty and the schoolhouse forty to Joe. Appellants argue that Joe’s evidence, at best, established an agreement whereby John was to deed only the old home place forty to Joe.

We have carefully studied the 246-page transcript and the exhibits that accompany it, and we are firmly convinced — as was the trial court — that Joe established, by clear, cogent and convincing evidence, an agreement between him and John whereby Joe was to be given both forties. Indeed, a stronger case on that issue could hardly be imagined. Joe’s evidence included not only his own testimony, but that of other witnesses including his sister, Ethel Hartley, and his brother, Starlin, both of whom quoted John as saying he intended to give Joe both parcels. Their testimony in Joe’s behalf is significant in that it was, obviously, adverse to their own pecuniary interests as heirs of John.

We hold that the trial court’s finding on that issue is supported by clear, cogent and convincing evidence, and that no error of law appears in regard thereto. We also determine that an opinion containing an exhaustive recital of the evidence on that issue would have no precedential value. Accordingly, the trial court’s finding that there was an agreement between John and Joe, prior to the execution of the 1974 warranty deed, that John would convey both forties to Joe, is affirmed in compliance with Rule 84.16(b), Missouri Rules of Civil Procedure (18th ed. 1987).

In segment “B” of their first assignment of error, appellants assert that the evidence failed to establish a “mutual mistake” between John and Joe whereby the schoolhouse forty was inadvertently omitted from the 1974 warranty deed. Appellants [883]*883insist the evidence revealed that A_pre-pared the deed “solely upon the instruction of John,” and that A_acted “solely as the agent of John.” It follows, say appellants, that any mistake of A_ “is considered, by law, to be unilateral in nature.”

Discussion of that proposition requires a synopsis of the evidence regarding A_’s preparation of the deed.

Joe testified that John and Starlin picked him up at his home, and the trio went to A_’s office. Asked what information John furnished A_, Joe replied, “A bunch of old deeds.”

Starlin’s testimony confirmed Joe’s. Starlin testified:

“Q. ... Did your father bring anything with him to take to [A_]?
A. He brung some deeds.
Q. Did your father take the abstract?
A. He didn’t have no abstract.
Q. He didn’t have it with him or never had one?
A. Never had an abstract in his life.
Q. How come?
A. He didn’t believe in it.”

Asked about the instructions John gave A — , Joe replied, “[D]ad told him he did not want his land in Probate Court.” Joe added that John directed A_to make a deed conveying the old home place forty and the schoolhouse forty to Joe. At the same time, John instructed A_to make another deed conveying a different parcel, also owned by John, to Starlin. That parcel is not involved in this litigation.

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Bluebook (online)
725 S.W.2d 880, 1987 Mo. App. LEXIS 3727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-cox-moctapp-1987.