Burchett v. Fink

• Decision Date: 06 December 1909
• Citation: 123 S.W. 74
• Parties: BURCHETT et al. v. FINK, Public Adm'r, et al.
• Court: Missouri Court of Appeals

123 S.W. 74

BURCHETT et al. v. FINK, Public Adm'r, et al.

Springfield Court of Appeals. Missouri.

December 6, 1909.

1. GIFTS (§ 31)—NATURE—DELIVERY.

Where there was no delivery by a payee of notes during her lifetime though she had indorsed them, there was no gift inter vivos thereof, regardless of her intention to deliver them to a donee at a future time; the attempted gift without delivery being without consideration.

2. BILLS AND NOTES (§ 335) — BONA FIDE PURCHASERS.

Upon intestate's death, title to notes intended to be given to her son during her lifetime and indorsed by her, but not delivered, passed to the administrator, and could only be transferred by operation of law according to statute, and the delivery thereof to the son after intestate's death not according to statute did not pass title, and his purchaser with full notice acquired no title.

Appeal from Circuit Court, Polk County; Argus Cox, Judge.

Action by Granville S. Burchett and another against A. C. Fink, public administrator of Polk county in charge of the estate of Juda Fleming, in which W. W. Grimes interpleaded. Judgment for defendant Fink, and the interpleader appeals. Affirmed.

The litigation in this case arises out of the conflicting claims of A. C. Fink, public administrator, in charge of the estate of Juda Fleming, deceased, and W. W. Grimes, in regard to the ownership of certain notes. It is a proceeding in equity, instituted by Granville S. Burchett and Eliza Burchett, respondents, to compel A. C. Fink, as public administrator, and W. W. Grimes, to interplead in order to determine to whom they should pay the notes in controversy. A summary statement of the facts in this case is as follows: In 1906 Juda Fleming sold to Granville S. Burchett certain lands in Polk county, Mo., receiving as the purchase price seven notes numbered from 1 to 7. Six of said notes were for the principal sum of $200 each, and the seventh of the series was for $260, and all of said notes were written on the standard forms of negotiable notes. Note number one was payable three years from date with interest at the rate of 6 per cent. per annum, and the others became due one each year thereafter. Some time after making these notes, Juda Fleming took notes numbered 1 and 3—being the notes in controversy—and had them indorsed in due form to her son, William B. Burchett, which she duly attested by making her mark as her signature, and remarking that when Will, who was living in Kansas, should return, she would give them to him. She then took the notes to the Bank of Humansville, put them in her private safety box with her other private papers, where they were found after her death by the public administrator, A. C. Fink, when he went to make an inventory of her estate. When the witnesses to the inventory came across these notes, a question arose whether they should be inventoried as a part of her estate or delivered to the indorsee. William B. Burchett, who had come on to attend his mother's funeral, was called into the bank and the notes were turned over to him, it being uncertain from whom he received the notes. On the same day William B. Burchett sold and delivered these notes to W. W. Grimes, appellant, for $350. The evidence shows the following facts in regard to Grimes' knowledge at the time he purchased the notes: He knew that Juda Fleming was dead, and he was informed that the notes were found in Juda Fleming's private box at the bank with her other papers at the time the inventory of her estate was being taken, and that the public administrator or some other person had turned these notes over to William B. Burchett. This case was heard by the circuit judge without the intervention of a jury, and judgment was...