Burkey v. Burkey

• Decision Date: 02 March 1915
• Docket Number: No. 17134.,17134.
• Citation: 175 S.W. 623
• Parties: BURKEY et al. v. BURKEY.
• Court: Missouri Supreme Court

175 S.W. 623

BURKEY et al. v. BURKEY.

No. 17134.

Supreme Court of Missouri, Division No. 1.

March 2, 1915.

Rehearing Denied April 1, 1915.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

Action by Benjamin F. Burkey and others against Charles A. Burkey, to set aside a deed to the defendant, and for partition of the land. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

The facts in this case, as shown by the statements of appellant and respondent, and as set forth in the short record herein, are in the main undisputed, and may be condensed as follows: Sarah A. Burkey was the widowed mother of seven children, or their descendants, at the time of her death in May, 1911, at which time she was about 75 years old. All of her children were adults of ripe years and lived at their respective farms and places of residence some distance from the town of Sturgeon, Boone county, Mo., where their mother resided and occupied the premises described in the petition as a residence. She lived alone in her home, except for the presence of a hired girl, and had been occupying the premises about ten years prior to her death. The evidence tends to show that she thought she was treated with some lack of affection and care by all of her children, except defendant, Charles A. Burkey, and that with this thought in her mind, on the 26th of October, 1910, she went to the Bank of Sturgeon, of which she was a customer, and asked the cashier, It. L. Robinson, who was also a notary public, to write a deed conveying her homestead to C. A. Burkey; that, when he asked her for the consideration, she told him to recite $1. After the deed was made and acknowledged, he handed it to her. She then told him that she would take it home with her, and, if her other children "treated her right, she intended to destroy the deed, and, if not, she would have it recorded, and wanted Charlie to have it—to have the property." The cashier says that the above-quoted words were all that was said by her at that time. About one month later Mrs. Burkey brought the deed to the bank and found Mr. Robinson absent. She left it with W. S. Dinwiddie, assistant cashier, saying that she wanted to have, it recorded, and gave him 80 cents to pay the recording fee. When Mr. Robinson returned, his assistant gave him the deed, and he mailed it to the recorder of deeds at Columbia, the county seat, first writing on the back of it the following words: "Return to Bank of Sturgeon," The date of the record of the deed was November 26, 1910, the day after Mrs. Burkey's visit to the bank. Mrs. Burkey lived on the property in question until her death in the following May. After the death of Mrs. Burkey, L. Robinson was one of the witnesses to the inventory of her estate. When the administrator began to make an inventory of her property, Mr. Robinson remarked: "There is no use inventorying the land. Charles has got a deed." The evidence does not show that Mr. Robinson had communicated his knowledge of the deed to any of the children of Mrs. Burkey. Two of the plaintiffs, a brother and brother-in-law of defendant, testified that they visited his farm a few days after learning that their mother had made him a deed to the property, and spoke to him about surrendering the deed or conveying back the property and paying her funeral expenses and dividing what was left. He testified that he offered to pay the funeral expenses. The two plaintiffs testified that he admitted to them that he did not know of the execution of the deed until Mr. Robinson referred to it when the inventory was taken. Defendant stated that he did not use that language, but that what he said was "that he did not know the deed had been returned to the bank until Mr. Robinson told him that fact." The evidence disclosed that Mrs. Burkey paid the taxes on the property—about $10—and that its assessed valuation `was $550. The present action is one for partition brought by the other children or their representatives against Charles A. Burkey.

The petition sets out the relationship of the parties. The answer sets up title in defendant under the deed from his mother, giving the date of its execution and record. The reply, after a general denial, alleged that the deed was testamentary in character, and that it was not delivered, and that it was void for want of consideration, and prayed judgment in accordance with the prayer of the petition. The trial judge rendered a decree for partition of the premises and made a finding that the deed was never delivered to the defendant; that lie had no knowledge of the execution of the deed prior to the death of the grantor; that no title or' estate passed to him thereunder; and that the deed was testamentary in character, and therefore ineffectual, and was a cloud upon the plaintiff's title, and adjudged that it be canceled, set aside, and for naught held. From that judgment the defendant perfected an appeal to this court.

F. G. Harris and Finley & Sapp, all of Columbia, for appellant. Don C. Carter, of Sturgeon, and N. T. Gentry, of Columbia, for respondents.

BOND, J. (after stating the facts as above).

To validate a deed there must be a delivery with the design of parting with title to the property, which delivery, in fact or by relation, must take effect in the lifetime of the grantor. Schooler v. Schooler, 258 Mo. loc. cit. 95, 167 S. W. 444; Cook v. Newby, 213 Mo. loc. cit. 490, 112 S. W. 272; Sneathen v. Sneathen, 104 Mo. 209, 16 S. W. 497, 24 Am. St. Rep. 326; 2 Black Com. 307; 4 Kent, Lect. 67, pp. 454-456.

This deed was delivered to the agent of the grantor to be recorded. The recording thus had therefore the same effect as if the grantor had caused it to be done in person. It is uniformly held that the making of a deed by a parent to a child, or the making of a deed by any other grantor, and the placing of the instrument on record, affords a legal presumption of delivery which, though rebuttable, can only be overcome by evidence removing any reasonable doubt...