Allen v. DeGroodt

Citation16 S.W. 494,105 Mo. 442
PartiesAllen et al., Appellants, v. DeGroodt et al
Decision Date25 May 1891
CourtUnited States State Supreme Court of Missouri

Appeal from Pike Circuit Court. -- Hon. E. M. Hughes, Judge.

Affirmed.

William G. Hammond, Frank, Dawson & Garvin and John W. Matson for appellants.

(1) Though a deed only takes effect from its delivery, the possession of the deed by the grantee is presumptive evidence of delivery. Green v. Yarnall, 6 Mo. 326. It is well settled that a delivery of a deed to a stranger for the use of the grantee is a good delivery. Carter v. Mills, 30 Mo. 439. The rule in Missouri is that delivery of a deed will be presumed as of the date of the acknowledgment. Fountaine v. Savings Inst., 57 Mo. 561. It is not necessary to the delivery of a deed that it should be actually handed to the grantee, or to any other person for him. Burke v. Adams, 80 Mo. 511. See, also, Kane v. McCoun, 55 Mo. 181; Pearce v. Danforth, 13 Mo. 364; Rogers v. Carey, 47 Mo. 234; City etc., v. Ferry Co., 88 Mo. 617. Proof of the execution of a deed added to its being in the possession of the grantee is prima facie evidence that it was sealed and delivered. Sadler v. Anderson, 17 Tex. 245; Rhine v Robinson, 27 Pa. St. 30; Houston v. Stanton, 11 Ala. 412; Secard v. Davis, 6 Pet. 124; Black v Thornton, 30 Ga. 361. And the execution of a deed in the presence of witnesses is evidence from which a delivery may be inferred. Howe v. Howe, 99 Mass. 98; Moore v. Hazelton, 9 Allen, 102; Doe v. Knight, 5 Barn. & Cres. 671; Hope v. Harmen, 16 Q. B. 751; Bunn v. Winthrop, 1 Johns. Ch. 329; Scrugham v. Wood, 15 Wend. 545; St. Louis v. Ferry Co., 88 Mo. 615. (2) The established doctrine is that a tenant for life in possession in the purchase of an incumbrance upon the estate is regarded as having made the purchase for the joint benefit of himself and the remainderman or reversioner, and cannot hold it for his own exclusive benefit. Allen v. DeGroodt, 98 Mo. 159; Daviess v. Myers, 13 B. Monroe, 573; Holdridge v. Gillespie, 2 Johns. Chan. 33, 34; 1 Washburn, Real Prop. 96; Whitney v. Salter, 36 Minn. 103. (3) It is a universal principle that one who ought to discharge a lien or incumbrance on property cannot, by omitting to do so, purchase at a sale of the property for the non-payment of the lien debt, and thereby strengthen his title. A purchase by one whose duty it was to pay the debt operates as a payment only, and the McQuie deed to Marshall S. Allen only operated as a release of the mortgage. Gwynn v. McCauley, 32 Ark. 97; Jacks v. Dyer, 31 Ark. 334; Fallon v. Chidester, 46 Iowa 588; Weare v. Van Meter, 42 Iowa 128; Bertram v. Cook, 32 Mich. 518. (4) The defendants, having expressly disclaimed at the trial title under the McQuie deed, are estopped to make any such claim in this court.

D. A. Ball, T. J. C. Fagg and R. L. Pearson for respondents.

(1) There was no delivery of the Betty Parry deed. The evidence shows she did not intend to part with the control of it during her life, and this being the case there was no such delivery as the law contemplates. Huey v. Huey, 65 Mo. 689; Scott v. Scott, 95 Mo. 300; Hammerslough v. Cheatham, 84 Mo. 13; Miller v. Lulman, 81 Mo. 311. (2) John E. Allen and wife had a life-estate in the property, and the possession remained in them until the sale under the McCune deed of trust. (3) Marshall S. Allen did not occupy such a position at the time of the sale as to prohibit him from purchasing in his own right. Taking possession and control of the property as he did after paying the money at the sale, his position would still be that of the mortgagee in possession after condition broken. These are fundamental principles underlying this whole case. As to the general principle that a trustee may purchase the trust property at a judicial sale brought about by a third party, which he had no part in procuring, and over which he could not have had control, is upheld by numerous decisions of this court and other courts of the country. Allin v. Gillett, 127 U.S. 589; Oil Co. v. Marbury, 91 U.S. 587; Provost v. Gratz, 1 Pet. C. C. 364; Fish v. Sarber, Watts & Serg. 18; Scott v. Mann, 33 Texas, 725. (4) Unless there is a clear case shown by the record to prove that the finding of the jury was the result of mistake, prejudice or corruption, this court will not interfere with the action of the trial court, in refusing to set aside the verdict and grant a new trial. Doering v. Slaum, 56 Mo. 479; Ackley v. Staehlin, 56 Mo. 558; Hearne v. Keath, 63 Mo. 84; Rea v. Ferguson, 72 Mo. 225.

Black, J. Barclay, J., concurs in the second and third paragraphs only.

OPINION

Black, J.

This is an action of ejectment to recover four lots in Marshall S. Allen's fifth addition to the city of Louisiana. On the first trial there was a judgment for defendants, which was reversed by this court. 98 Mo. 159, 11 S.W. 240. There was a like result on the second trial, and the plaintiffs again appealed.

The plaintiffs put in evidence a deed from Betty Parry, dated the eighth of October, 1845, conveying to Marshall S. Allen one hundred and seventy acres of land for life, remainder to his children. This deed also makes provisions, hereafter mentioned, for John E. Allen and his wife during their lives. Plaintiffs also read in evidence the will of Betty Parry, bearing the same date as the deed. She died in a few days after the date of these instruments, and the deed was recorded, and the will probated at the same time, on the fifteenth of October, 1845. The wife of John E. Allen died some eight years after the last-mentioned date, and he died a few years later; the exact date is not given. Marshall S. Allen died in 1881, and the plaintiffs are his children. They commenced this suit in 1884.

The defendants put in evidence a deed of trust, dated the fifteenth of May, 1843, from Betty Parry, conveying the land to Edward G. McQuie, in trust to secure her notes for $ 1,270, payable to John S. McCune. The debts were past due at the date of the deed to Marshall S. Allen. The trustee sold the premises, under the deed of trust, on the eleventh of February, 1850, and Marshall S. Allen became the purchaser, at the price of $ 1,499, which was the full value of the land. The four lots in question were sold by the sheriff, on the ninth of March, 1880, under a judgment of the circuit court for delinquent taxes against Marshall S. Allen, and Hawkins became the purchaser. Hawkins conveyed to Hart, and Hart to defendant DeGroodt.

A question of fact made on the last trial was whether there was ever any delivery of the deed from Betty Parry to Marshall S. Allen, the defendants taking the position that that deed was never delivered to, or accepted by, him. This issue the jury found for defendants. The claim of plaintiffs is that the court should have ruled, as a matter of law, that the deed was duly delivered and accepted; that Marshall S. Allen was a life-tenant, and it was his duty to pay off the McCune mortgage, and that his purchase at the trustee's sale operated only as a payment of that debt.

At the date of the deed from Betty Parry to Marshall S. Allen, she and her son-in-law, John E. Allen, and his wife, and Marshall S. Allen and his wife all lived together on the premises described in the deed. The deed conveys the premises to Marshall S. Allen, in consideration of love and affection. John E. Allen is not named in the granting clause, but, after describing the land, the deed says: "To have and to hold the said granted and bargained premises, with all and singular the rights, privileges and advantages thereof, to him, the said Marshall S. Allen, and his heirs forever, upon the following terms and conditions, nevertheless; that is to say, he is not to come in full possession of the land during the natural life of his father, John E. Allen, and also the natural life of his mother, Parmelia Allen, but is to reside with them at the home farm, and carry on the farm in company with his father, John E. Allen, to the best advantage of himself and the estate I leave behind me, taking, as a compensation for his services and trouble, one-third of all the products of the farm, whether of grain or increase of stock of all kinds, according to the conditions and terms I have specified and laid down in my last will and testament, and also conditioned that, immediately after the death of his father and mother, he is to have, use, occupy and enjoy the premises, and all the rents and profits thereof, during his natural life, with reversion thereafter to the lawful heirs and legal representatives of said Marshall S. Allen, so that said Marshall S. Allen shall not have it in his power during his lifetime to bargain, sell or mortgage, or in anywise alien or incumber said premises, and provided also, that the said granted and bargained premises shall in nowise be subject to any debt or debts, contracts or engagements, whatever of the said Marshall S. Allen now existing, nor any that said Marshall S. Allen shall or may hereafter enter into. The true intent and meaning of this conveyance being the said tracts of land comprising my home farm shall always remain an unincumbered home and possession for the said Marshall S. Allen during his lifetime, and to revert, unincumbered, to his heirs and legal representatives." The deed concludes: "Signed, sealed and executed in the presence of us. E. M. Bartlett, Joseph Richardson, Edwin Draper."

The will, among other things, contains the following provisions John E. Allen and his wife are to reside on the "home farm," and carry on business as usual, to facilitate the payment of the debts, and Marshall S. Allen is to be joined with him to carry on the farm to the best advantage. When speaking of Marshall S. Allen, it is provided: "After the provisions...

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