17 S.W. 319 (Mo. 1891), Tyler v. Hall

Citation:17 S.W. 319, 106 Mo. 313
Opinion Judge:Macfarlane, J.
Party Name:Tyler v. Hall et al., Appellants
Attorney:R. M. Robertson, M. A. Fyke and O. L. Houts for appellants. W. W. Wood and S. P. Sparks for respondent.
Case Date:October 12, 1891
Court:Supreme Court of Missouri

Page 319

17 S.W. 319 (Mo. 1891)

106 Mo. 313



Hall et al., Appellants

Supreme Court of Missouri, Second Division

October 12, 1891

Appeal from Henry Circuit Court. -- Hon. D. A. Dearmond, Judge.


R. M. Robertson, M. A. Fyke and O. L. Houts for appellants.

(1) The deed from Sylvester Hall to George L. Hall being duly executed and acknowledged and in the possession of the grantee, there was prima facie evidence of delivery. Terhune v. Oldis, 44 N.J.Eq. 146; S. C., 14 A. 638. (2) "The question of delivery being one of fact, and possession being only primary evidence of delivery, he who disputes such facts may rebut the presumption arising from possession by showing that there has in fact been no delivery; but it has been said that, when a deed is found in the possession of the grantee, nothing but the most satisfactory evidence of non-delivery should prevail against the presumption." Ward v. Daugherty, 7 Am. St. Rep. 151; S. C., 75 Cal. 240; Devlin on Deeds, sec. 294; Tunson v. Chamblin, 88 Ill. 379; Farlee v. Farlee, 21 N. J. Law, 280; Black v. Shuve, 13 N.J.Eq. 455; Brown v. Brown, 33 N.J.Eq. 653; Purdy v. Coar, 4 Am. St. Rep. 491; S. C., 109 N.Y. 448; Hinson v. Bailey, 5 Am. St. Rep. 700; Davis v. Cross, 52 Am. Rep. 177; Stewart v. Weed, 11 Ind. 92. (3) The third, fifth and sixth instructions given for respondent were improper as containing comments on the evidence. Forrester v. Moore, 77 Mo. 651; Carroll v. Paul, 16 Mo. 226; Fine v. Public Schools, 30 Mo. 166; Gilliam v. Ball, 49 Mo. 249. (4) The conversation between George L. Hall and his attorney, Lacy, was confidential, and should have been excluded. Hull v. Lyon, 27 Mo. 570; Gray v. Fox, 43 Mo. 570. (5) The court erred in construing the deed read in evidence by respondent from George L. Hall to J. K. Tyler, in this: If the deed from Sylvester to George Hall was delivered, the finding should have been for appellant as to all the land, and instruction, numbered 1, on part of respondent should not have been given. Clamorgan v. Lane, 9 Mo. side p. 447; Donaldson v. Printing & Pub. Co., 70 Mo. 168; Dougal v. Fryer, 3 Mo. side p. 40.

W. W. Wood and S. P. Sparks for respondent.

(1) The assumption in appellants' proposition that the deed was in the possession of Geo. L. Hall is incorrect. The evidence all showed without contradiction that Sylvester Hall died in possession of the deed, and the presumption is against delivery instead of in favor of it. Huey v. Huey, 65 Mo. 689; Terhune v. Oldis, 44 N.J.Eq. 146. (2) The third instruction declares a well-established principle of law. It is an every-day practice to declare to a jury the legal effects of facts in proof, where the existence of those facts raise a presumption of law. Huey v. Huey, supra; Terhune v. Oldis, supra; Forrester v. Moore, 77 Mo. 660. (3) The clause in restraint of alienation and the forfeiture clause were both void. The deed, while it conveyed only a life-estate to George L. Hall, conveyed a fee to his heirs, and there was no possibility of reverter to Sylvester Hall. And where this is the case a clause in express restraint of alienation, or any clause that places a fine or penalty upon alienation, is absolutely void. Thomas' Coke, top pp. 21-23, side p. 28, note s. McDowell v. Brown, 21 Mo. 57; McElvaine v. Smith, 42 Mo. 45; Boon on Real Prop., sec. 208; Bank v. Davis, 21 Pick. 45; Montague v. Crane, 12 Mo.App. 582; McClearly v. Ellis, 6 N.W. 571; Mandelbaum v. McDonnell, 29 Mich. 88; DePeyester v. Michael, 6 N.Y. 468; Lampert v. Haydel, 20 Mo.App. 616; Pickens v. Dorris, 20 Mo.App. 1; 2 Story, Eq. 974. There is no question but that the rule applies in legal estates. Sparhawk v. Cloom, 125 Mass. 263; Bank v. Adams, 133 Mass. 27. (4) Hall, having executed a deed to his interest in the same land, describing himself as heir at law of Sylvester Hall, and the interest he conveys as that of an heir at law, he is estopped by his deed from denying that he conveyed such an interest. It is a solemn admission that he had no other title. Abbott's Trial Ev. 713; Bailey v. Trustees, 12 Mo. 174; Clamorgan v. Green, 32 Mo. 285. (5) Conceding that the deed had been delivered, yet Hall's representation to Tyler that it had not been, and that he had not accepted it, estops him from asserting any title under it as against Tyler....

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