Burk v. Pence

• Decision Date: 13 July 1907
• Parties: BURK et al. v. PENCE, Appellant
• Court: Missouri Supreme Court

104 S.W. 23

206 Mo. 315

BURK et al. v. PENCE, Appellant

Supreme Court of Missouri, First Division

July 13, 1907

Appeal from Knox Circuit Court. -- Hon. Charles D. Stewart, Judge.

Reversed and remanded (with directions).

L. F Cottey and D. A. Rouner for appellant.

(1) The judgment is not responsive to the issues made by the pleadings in the cause. The title to be adjudicated is the title which the plaintiffs assert and the defendant denies which in this case is thirty-four forty-eighths of the land described in the petition. By the plain terms of the statute no right or title can be litigated in this sort of suit, save and except such as may be asserted by the plaintiff, and denied by the defendant, respectively. Graton v. Land & Lumber Co., 189 Mo. 332; Gage v. Cantwell, 191 Mo. 706; Roden v. Helm, 192 Mo. 94; Schneider v Patton, 175 Mo. 723; Ross v. Ross, 81 Mo. 84; Newham v. Kenton, 79 Mo. 382. It is equally well settled that the decree which is awarded a plaintiff must be authorized both by the facts stated in the petition and the proof. Reed v. Bott, 100 Mo. 62. The judgment or decree in this case is broader than it is authorized by the allegations of the petition, and is not responsive to the issues under the pleadings, and is, therefore, erroneous and void. (2) A careful examination of the so-called evidence of witnesses Howerton, Campbell and King, shows conclusively that it does not amount to a contradiction of anything testified to by witness Padgett. (3) The judgment is not supported by the evidence. The uncontradicted evidence is that the grantor, in his lifetime and when of sound mind, made, executed and delivered the deed in question to defendant, with the intention that he should have the farm. That it was the fixed intention and purpose of Hiram Hickman that the defendant should have the farm, is evidenced by his every act and word, in that regard, for almost five years prior to his death. There is not an intimation in the record of any sort, much less evidence, that he ever had any other thought in his mind from the day he was paralyzed, August 21, 1899, until he died, July 6, 1904. The facts are conclusive that it was the intention of the grantor to give the farm to defendant. The law is well settled in this jurisdiction that the intention of the grantor is the fact to be established; and that the courts seek diligently for the intention of the maker of the instrument. The delivery of a deed so far as the grantor is concerned is a matter of intention, and where the intention clearly appears, the act in pursuance thereof will be construed to constitute a delivery. The law presumes much more in favor of a delivery of a deed in case of voluntary settlements in favor of a relative than it does in ordinary cases of bargain and sale between strangers. Illustrations and applications of the principles here announced may be found in the following cases: Coulson v. Coulson, 180 Mo. 709; White v. Pollock, 117 Mo. 467; Rumsey v. Otis, 133 Mo. 85; Hamilton v. Armstrong, 120 Mo. 597; Standiford v. Standiford, 97 Mo. 231; Sneathen v. Sneathen, 104 Mo. 201; Crowder v. Searcy, 103 Mo. 97; Burke v. Adams, 80 Mo. 504; Appleman v. Appleman, 140 Mo. 309; Hall v. Hall, 107 Mo. 101; McNear v. Williamson, 166 Mo. 358; Griffin v. McIntosh, 176 Mo. 392; Powell v. Banks, 146 Mo. 620; Allen v. DeGroodt, 105 Mo. 442; Rothenbarger v. Rothenbarger, 111 Mo. 10; Kingman & Co. v. Buggy Co., 150 Mo. 310.

F. H. McCullough, G. R. Balthrope and J. W. Ennis for respondents.

(1) The contention of appellant, that "the judgment is not responsive to the issues made by the pleadings in the cause," made in the first subdivision of appellant's brief, is not well taken. Sec. 650, R. S. 1899; Graton v. Land & Lumber Co., 189 Mo. 322; Gage v. Cantwell, 191 Mo. 709; Roden v. Helm, 192 Mo. 71. (2) To operate as a complete and effectual conveyance of land, a delivery of the deed, actual or constructive, by the grantor and an acceptance by the grantee, or by some one for him, are essential requisites. These are the final and crowning acts in the conveyance, without which all other formalities are ineffectual. The grantor must part with the deed and all right of dominion over it, intending that it shall operate as a conveyance, and the grantee must accept it. Standiford v. Standiford, 97 Mo. 238; Huey v. Huey, 65 Mo. 689; Taylor v. Davis, 72 Mo. 291; 2 Greenleaf on Evidence, sec. 297; Tyler v. Hall, 106 Mo. 313; Hall v. Hall, 107 Mo. 107; Bunn v. Stuart, 183 Mo. 383; McNear v. Williamson, 166 Mo. 367; Mudd v. Dillon, 166 Mo. 119. The courts look to the intention of the grantor, as to the delivery of the deed, and not to the intention of the grantor, as to the disposition of the property. Peters v. Berkemeier, 184 Mo. 402; Coulson v. Coulson, 180 Mo. 709; Hamilton v. Armstrong, 120 Mo. 597; White v. Pollock, 117 Mo. 467; Sneathen v. Sneathen, 104 Mo. 201; Rumsey v. Otis, 133 Mo. 85; Crowder v. Searcy, 103 Mo. 97; Burk v. Adams, 80 Mo. 504; Appleman v. Appleman, 140 Mo. 309. The question of the delivery of a deed is a mixed question of law and fact, and such delivery is complete only when the grantor has parted with his dominion over the deed. Powell v. Banks, 146 Mo. 620. The trial court clearly had the right to make any finding on the question of fact as to the second and third delivery of the pretended deed in this case that to him might seem proper and just, and where the evidence consists of oral testimony, the trial court's finding of facts will be greatly deferred to, on account of the superior advantages possessed by the trial court for weighing the evidence and judging as to the credibility of the witnesses. Tinker v. Kier, 195 Mo. 204; Carter v. Dilley, 167 Mo. 571; Dunnivan v. Dunnivan, 157 Mo. 160; Hartley v. Hartley, 143 Mo. 216; Mathias v. O'Neill, 94 Mo. 520; Loring v. Atterbury, 138 Mo. 262; Shanklin v. McCracken, 151 Mo. 587; Parker v. Roberts, 116 Mo. 667; Chouteau v. Allen, 70 Mo. 336. (3) This is an action at law, and no instructions or declarations of law being asked or given, and no questions of law being presented in the record, and the testimony being conflicting, the findings of the trial court cannot be reviewed. Moberly v. Trenton, 181 Mo. 647.

WOODSON, J. VALLIANT, P. J. Lamm and Graves, JJ., concur in these views; Woodson, J., concurs except as to the interpretation of the pleadings.

OPINION

MINORITY OPINION.

WOODSON J.

-- This suit originated in the circuit court of Knox county, and was instituted by the plaintiffs against the defendant, seeking to determine the interests of the parties and quiet the title to certain lands, described in the petition, as is provided for by section 650, Revised Statutes 1899.

The contention of defendant being that the judgment is not responsive to the issues made by the pleadings, and questions being presented in respect to the introduction of evidence thereunder, it will be necessary to set them out in full.

Omitting the formal parts, the petition is as follows:

"Plaintiffs state that Hiram Hickman departed this life at the county of Knox and State of Missouri on the day of , 1904, the owner in fee simple of the following described lands in county of Knox and State of Missouri, to-wit:

"The east half of the southwest quarter of section twenty-six, and thirty-five acres lying in the east part of the west half of the southwest quarter of section twenty-six, and thirty-two acres more or less, being all of the northwest fourth of the southeast quarter of section twenty-six, except eight acres in the northeast corner thereof heretofore conveyed by Hiram Hickman, in small tracts, by deeds, to Isaac H. Pigeon Thomas A. Howerton, the Trustees of the Christian Church, P. A. Creason, William Pence and Samuel H. Varner, respectively. All of said land being in township sixty, range eleven west, and containing one hundred and forty-seven acres, more or less.

"That he so departed this life, intestate, leaving as his sole heirs at law these plaintiffs, who are each entitled to an undivided interest in said lands as follows:

"William A. Burk is entitled to one-sixteenth, as evidenced by deed from Lafay Hunt; Mary E. Burk is entitled to one-sixteenth; Willard Walker is entitled to one-sixteenth; Michael B. Hickman, Eliza E. Applegate, Henry B. Hickman, William J. Hickman, Laura B. Hickman, Hattie M. King, Rolly V. Hickman and M. Guy Hickman are each entitled to one thirty-second of said land; William Pence is entitled to one forty-eighth interest in said land; Sarah Newman is entitled to one-fourth of said land; and the defendant, James Pence, who is entitled to an undivided one forty-eighth interest in said land, and the following named persons who are not made parties hereto: Olive Hunt, who is entitled to one-sixteenth thereof, and Pinkie Hagar, Mollie Vanosdol, Ella Rice, Eliza Pence, John Pence, Frank Pence, Henry Pence, Jacob Pence, Wesley Pence and Albert Pence, who are each entitled to an undivided one forty-eighth interest in said land, but make no claim thereto.

"That since the death of said Hiram Hickman, as aforesaid, the defendant has taken possession of all said lands, claiming to be the owner in fee simple of all of the same, and now holds the possession adversely to these plaintiffs, and adversely to their interests as aforesaid, the precise nature, claim and title under which defendant so claims said land being unknown to these plaintiffs.

"Wherefore plaintiffs pray that the court ascertain and determine the estate, title and interest of the parties plaintiff and defendant, respectively, in and to said land above described and to define and adjudge by its judgment or decree the title, estate and interest of the parties severally, in and to the real property aforesaid,...