Bunn v. Stuart

• Decision Date: 20 June 1904
• Citation: 81 S.W. 1091,183 Mo. 375
• Parties: BUNN, Appellant, v. STUART et al
• Court: Missouri Supreme Court

81 S.W. 1091

183 Mo. 375

BUNN, Appellant, v. STUART et al

Supreme Court of Missouri, First Division

June 20, 1904

July 1904

Appeal from Shelby Circuit Court. -- Hon. Nat. M. Shelton, Judge.

Reversed and remanded (with directions).

V. L Drain for appellant.

(1) There was no delivery of the deeds to respondents. The testimony of appellant and of his son Joseph Bunn is not contradicted as to the agreement to return the papers when called for by the grantor. It is but the restatement of an oft-affirmed proposition to say that the appellant, having never parted with the control or dominion over the papers and respondents having received them merely as custodians subject to the will of the grantor, no rights were acquired thereby, and no title was vested in respondents by reason of the manual possession thereof. Vanstone v. Godwin, 42 Mo.App. 39; Huey v. Huey, 65 Mo. 694; Miller v. Lullman, 81 Mo. 311; Tobin v. Bass, 85 Mo. 654; Sneathen v. Sneathen, 104 Mo. 201; Tyler v. Hall, 106 Mo. 313; Hall v. Hall, 107 Mo. 101; Mudd v. Dillon, 166 Mo. 110; McNear v. Williamson, 166 Mo. 358; 9 Am. and Eng. Ency. of Law (2 Ed.), 153, 161. (2) Before the door of justice can be sealed against a supplicant it must be shown that he was "equal in guilt" (in pari delicto) as to the wrong against which relief is sought. To be equal in guilt the parties must necessarily be equal in capacity, and equal in the circumstance of choice; they must likewise participate equally in the wrong complained of. When such a case is presented the court will refuse its protection and leave the parties as they have placed themselves. It is vastly different, however, where the parties have entered into a questionable plan as to a certain thing, but where one of the participants, using the confidence thus unworthily bestowed, betrays the other, and by reason of his betrayal secures to himself an advantage far beyond the scope of the original transaction. In such a case, while the original guilt of the complainant should not be sanctioned, the greater wrong of the betrayer should be punished, and the fruits of his iniquity should be taken away. It is clearly shown by the evidence that respondents secured possession of the deeds under the promise related in the evidence of appellant, and that these conveyances were voluntary so far as consideration is concerned. The record of the instruments, retained now under claim of title, if sustained, will result in the loss of that homestead which should serve as a shelter and support during the declining years of his life. It is the peculiar province of a court of equity to give relief in such cases. Bispham's Equity (4 Ed.), 61; 1 Story, Equity, sec. 308; Poston v. Balch, 69 Mo. 115; Holliway v. Holliway, 77 Mo. 392; Armstrong v. Logan, 115 Mo. 465; Martin v. Martin, 46 S.E. 120.

B. R. Dysart and G. W. Humphrey for respondents.

(1) The deeds having been voluntarily executed and acknowledged and conveying land formerly willed by appellant to the mother of respondents, with her consent, and the announcement made by the appellant to all of the family and the public that the land belonged to respondents, constitutes a good delivery to minors, although the deeds were placed in a bank where grantor had access to them and when, eight months after their execution, they were handed to the minor grantees, certainly establishes not only a presumptive, but a positive delivery, and there is no testimony to justify a court of equity to declare otherwise. Tobin v. Bass, 85 Mo. 654; Standiford v. Standiford, 97 Mo. 231; Sneathen v. Sneathen, 104 Mo. 201; Hall v. Hall, 107 Mo. 101; Crowder v. Searcy, 103 Mo. 97; Hamilton v. Armstrong, 120 Mo. 624; Rumsey v. Otis, 133 Mo. 95; Appleman v. Appleman, 140 Mo. 309; Kingman & Co. v. Cornell-Tebbets Co., 150 Mo. 312. (2) Admitting a delivery of the deeds, there is certainly nothing in testimony to justify appellant's contention that a court of equity should grant him aid, notwithstanding his fraudulent intent and purpose, in order to prevent a greater wrong. We can find only two cases decided by this court, where fraud was an element, in which such relief was given: Poston v. Balch, 69 Mo. 115, and Holliway v. Holliway, 77 Mo. 392. None of the elements which justified the decree in either of these cases can be found in the case at bar. The most recent discussion of this doctrine is found in the case of McNear v. Williamson, 166 Mo. 358, where such relief was refused, although, it seems to us, the facts were much stronger than in this case. (2) The general doctrine that equity will not aid a party in recovering property who disposed of it to avoid real or supposed obligations and with fraudulent intent, is so well established that we need not cite any authority in its support. (3) Appellant's contention that the deeds were in no event to be recorded can not affect the rights of the parties hereto. The record of a deed is to impart notice to the public, but between the parties it is as binding unrecorded as recorded. R. S. 1899, secs. 924 and 925.

OPINION

BRACE, P. J.

This is an appeal from a judgment of the circuit court of Shelby county, dismissing plaintiff's bill in equity, which is as follows:

"Benjamin Bunn and Nettie Bunn, his wife, plaintiffs, v. William Stewart and Benjamin Stewart, defendants.

"Plaintiffs state that they are husband and wife and that they were married on the twentieth day of October, 1899.

"That prior to said marriage, to-wit, on February 13, 1899, the plaintiff Benjamin Bunn, having in view the future disposition of his real estate, made and executed two warranty deeds of real estate of which he was seized, one to William Stewart, conveying by its terms the west one-half of the west one-half of section fifteen, township fifty-seven range twelve, containing one hundred and sixty acres more or less; the other to Benjamin Stewart, conveying by its terms the east one-half of the west one-half of section fifteen, township fifty-seven, range twelve, in said county and State, containing one hundred and sixty acres more or less; both of said deeds being acknowledged before Marvin Whitby, a justice of the peace in and for said county on said date.

"That both of said deeds were made without any consideration whatever moving from the grantees therein named, and that it was the intention of said grantor to hold said deeds in his possession, with others that he had then and there made to his children, and not to deliver them until such time and under such circumstances as he might see fit in the distribution of his estate, and that said deeds remained in his possession and under his control, and that he never at any time parted with his dominion or control over the same.

"Plaintiffs further say that after the marriage as above set forth, to-wit, about December, 1900, unhappy differences arose between them, and that a separation ensued; that their property rights were in dispute between them and that while they were separated as aforesaid, to-wit, on or about the twelfth day of January, 1901, defendants, in accordance with a prearranged plan between them, came to plaintiff, Benjamin Bunn, and requested that these deeds above described be delivered to them to hold and keep for said plaintiff, pending and during the dispute as to the property and marital rights as aforesaid; and that said defendants stated to said plaintiff that they would assist him thereby in preventing said Nettie Bunn from securing her rights in the property of said Benjamin Bunn in the dispute in which they were then involved.

"That plaintiff Benjamin Bunn was and is a man of advanced age and feeble health, and was at the time beset with domestic and business difficulties whereby his mental condition was impaired, and that by reason of said promises and inducements, so made as aforesaid, the defendants secured from said Benjamin Bunn the deeds above described, but it was then and there expressly and mutually agreed by and between said Benjamin Bunn and the said defendants, that said deeds should be returned to the grantor whenever he should demand same, and that in no event should they be placed of record in the recorder's office of said county unless the consent of said plaintiff be had thereto, and that defendants then and there promised plaintiff that they would merely hold said deeds in their possession without record, and subject to his recall whenever he should demand same.

"Plaintiffs further say that said defendants, after securing said deeds as aforesaid, and without regard to their promise so made to plaintiff, but with conspiracy, deceit and wrong, caused said deeds to be placed of record in the recorder's office of said Shelby county, on the eighteenth day of January, 1901, and that same are now recorded in the records of said county in book sixty-seven, said deed to William Stuart at page seventeen, and said deed to Benjamin Stuart at page sixteen of said book.

"Plaintiffs further say that on the -- day of March, 1901, they adjusted their marital differences and resumed the relation of husband and wife, and that plaintiff Benjamin Bunn demanded the return of said deeds, when he learned that they had been recorded as aforesaid; that defendants have refused to return said deeds and have refused to make a conveyance to him so as to vest the record title in said plaintiffs; that the record of said deeds are a cloud on plaintiff's title to said real estate; that the record of said deeds as they now appear are a bar to the dower rights of said Nettie Bunn, and that said deeds and the record thereof are a fraud on these plaintiffs.

"Wherefore plaintiffs pray that said deeds be cancelled and adjudged null and void by the court, and the record title thereto be divested from defendants...