Chambers v. Chambers
| Decision Date | 31 March 1910 |
| Parties | A. J. CHAMBERS v. LILLIAN CHAMBERS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Grundy Circuit Court. -- Hon. G. W. Wanamaker, Judge.
Reversed.
Flansburg & Williams and Hall & Hall for appellant.
(1) The petition fails to state facts sufficient to constitute a cause of action. The deed in question being a regular warranty deed with all the usual covenants, having been voluntarily made and filed for record by plaintiff uninfluenced by appellant or any other person, no extrinsic evidence of the plaintiff's intentions or purpose in making the deed was admissible. R. S. 1899, sec. 3416; Price v. Kane, 112 Mo. 412; Weiss v Heitkamp, 127 Mo. 23; Rogers v. Ramey, 137 Mo 598; Bartlett v. Trinsley, 175 Mo. 319; Richardson v. Champion, 143 Mo. 538; Hillman v. Allen, 145 Mo. 638. The evidence of plaintiff as to his intentions in making and sending the deed to the recorder to be recorded was inadmissible. It was his province to state all the facts in connection with the making of the deed, and it was for the court to determine what his intentions were. Owen v. Ellis, 64 Mo. 77; Vawter v. Hultz, 112 Mo. 639; Perkins v. Fulding, 119 Mo. 149; Derry v. Fielder, 216 Mo. 176. (2) The execution and filing of the deed for record by the plaintiff are strong evidence of the delivery of it to the defendant, and the burden is upon the plaintiff to prove by clear countervailing evidence that he did not intend it as a delivery. Burke v. Adams, 80 Mo. 504; Blight v. Schenck, 10 Pa. St. 289. The countervailing proof therefore that the recording was not designed as a delivery should be clear and persuasive in the instance where the grant was against the interest of the grantor, as where the receipt of the purchase money is acknowledged in the deed. In an early decision our Supreme Court held that the recording of a deed did away with the old common law livery of seizin. Perry v. Price, 1 Mo. 555. In Ayres v. Hayes, 13 Mo. 252, it was held that a deed of trust recorded by the maker without the knowledge of the beneficiary was a substantial delivery. Its acceptance by the cestui que trust might be presumed, because the grant was for his benefit; and in Pearce v. Dansforth, 13 Mo. 360, it was held that 'the delivery of a deed by the grantor for the purpose of having it recorded may under proper concurring circumstances be regarded as a delivery to the grantee.' Both on authority and reason, where the deed is duly executed, acknowledged and put to record by the grantor it is persuasive evidence as against him, especially where the purchase money is receipted for, that he intended thereby to pass the title; and the act would throw the burden on the grantor and his privies to show by clear countervailing evidence that it was not a delivery. Tobin v. Bass, 85 Mo. 654; Standiford v. Standiford, 97 Mo. 231; Kane v. McCown, 55 Mo. 181; Hall v. Hall, 107 Mo. 107; Kingman Co. v. Buggy Co., 150 Mo. 309; DeVorse v. Snider, 60 Mo. 236; Lumber Co. v. Anderson, 13 Mo.App. 429; Majors v. Hill, 13 Mo. 250; Coulson v. Coulson, 180 Mo. 709; Marshall v. Hartzfelt, 98 Mo.App. 178; Colee v. Colee, 122 Ind. 109. (3) The plaintiff by his attorneys expressly admitted on the trial, "that the plaintiff was mentally competent and responsible at the time of executing and recording the deed," and it must have been made and filed for record either with the intention and purpose of vesting the title to the property in the defendant for her own use and benefit, or as a resulting trust for the use and benefit of plaintiff, the grantor, but the evidence necessary to establish a resulting trust "must be clear, strong, unequivocal and so definite and positive as to leave no room for doubt in the mind of the chancellor." Woodford v. Stephens, 51 Mo. 443; Forrester v. Scoville, 51 Mo. 268; Modrell v. Riddle, 82 Mo. 31; Sweet v. Owens, 109 Mo. 1; Rogers v. Rogers, 87 Mo. 257; Railroad v. McCarty, 97 Mo. 214; Taylor v. Von Schrader, 107 Mo. 206; Curd v. Brown, 148 Mo. 82; Viers v. Viers, 175 Mo. 444; Reed v. Speery, 193 Mo. 167; King v. Isley, 116 Mo. 155; McFarland v. La Force, 119 Mo. 585; Derry v. Fielder, 216 Mo. 176; Plumb v. Cooper, 121 Mo. 668. (4) The repeated declarations by the plaintiff, that he had deeded the land to appellant and that he intended for her to have it, being made against plaintiff's interest and at times when it was his duty to speak the truth, especially in the letter written to the loan company, when his attention was directly called to the making of the deed, are presumed to be true, and afford proof of the most satisfactory character. 1 Am. and Eng. Ency. Law (2 Ed.), 723; Bogie v. Nolan, 96 Mo. 85; State v. Brooks, 99 Mo. 137; Feary v. Railroad, 162 Mo. 75; Shepherd v. Railroad, 189 Mo. 362; McCaffery v. Railroad, 192 Mo. 144; Kirkpatrick v. Railroad, 211 Mo. 68; Erwin v. Railroad, 94 Mo.App. 289. (5) The deed from plaintiff to the defendant being absolute in form and for the benefit of defendant, and having been voluntarily recorded by the plaintiff, and defendant being his infant daughter, her acceptance of the deed will be presumed. Tobin v. Bass, 85 Mo. 654; Standiford v. Standiford, 97 Mo. 231; Hall v. Hall, 107 Mo. 101; Sneathen v. Sneathen, 104 Mo. 201; Kingman Co. v. Buggy Co., 154 Mo. 282; Colee v. Colee, 122 Ind. 109; Couch v. Harp, 201 Mo. 457; Whitaker v. Whitaker, 175 Mo. 1; Derry v. Fielder, 216 Mo. 191. Defendant being a minor at the time of the execution and delivery of the deed to the recorder for record, she had three years after she became twenty-one years of age to accept it. R. S. 1899, sec. 4265. She was under disability at the time, and the same rule of law as to her disability in making a deed would apply in accepting a deed made to her. Shaffer v. Detie, 191 Mo. 377. (6) To warrant a court of equity in establishing title contrary to the terms of a deed the clearest and most convincing proof must be made. Shaw v. Shaw, 14 Mo.App. 580; Schnabel v. Schnabel, 12 Mo.App. 587; Sharp v. Berry, 60 Mo. 575; Brinkman v. Sunken, 174 Mo. 709; Curd v. Brown, 148 Mo. 82; Derry v. Fielder, 216 Mo. 176; Parsons v. Parsons, 45 Mo. 265; Hall v. Hall, 107 Mo. 101. (7) The deed took effect and the title vested in the defendant upon the delivery or the filing of the deed for record, and no subsequent act or intention of the plaintiff could divest it. The deed being purely voluntary and uninfluenced by any one, and the plaintiff's attorneys having disclaimed any mental incapacity, the deed cannot be set aside because the grantor afterwards changes his mind. Doherty v. Noble, 138 Mo. 24; McKinney v. Hensley, 74 Mo. 326; McKissock v. Groom, 148 Mo. 459. (8) If plaintiff made the deed to defendant to put it beyond the reach of his creditors as stated in his letter to the investment company, dated August 23, 1905, then it was fraudulent as to his creditors and he does not appear before the court with clean hands, and the court will not aid him in his fraudulent transaction. Derry v. Fielder, 216 Mo. 176; McNear v. Williamson, 166 Mo. 365; Morrison v. Jullen, 145 Mo. 282; Little v. Cunningham, 116 Mo.App. 549; Pomeroy's Equity Jur., sec. 397, 404.
Hubbell Bros. for respondent.
(1) No delivery, no deed -- no title. 9 Am. and Eng. Ency. Law (2 Ed.), 150, 153, 154, 159, 160; Tiedeman, Real Prop., sec. 812, p. 642; 13 Cyc. 560, 567, 568, 746, 750. (2) The question of delivery is a question of intent. Tiedeman, Real Prop., sec. 813, pp. 645, 646; Drinkwater v. Hollar, 91 P. 664. (3) Recording is but some evidence tending to show a delivery. McCune v. Goodwillie, 204 Mo. 338; Young v. Guilbeau, 3 Wall. 636; Miller v. McCaleb, 208 Mo. 580; Parmalee v. Simpson, 5 Wall. 81; Rausch v. Michel, 192 Mo. 293; Hammerslough v. Cheatham, 84 Mo. 13; Huey v. Huey, 65 Mo. 689. (4) Whether there was an intention to deliver the deed, must be determined by a consideration of all the facts and circumstances in the case. Powell v. Banks, 146 Mo. 620; Const. Co. v. Tie Co., 185 Mo. 25; McCartney v. McCartney, 55 S.W. 312; Stevens v. Castel, 29 N.W. 828; Drinkwater v. Hollar, 91 P. 664; Miller v. Lullman, 81 Mo. 311; Cravens v. Rossiter, 116 Mo. 338; Scott v. Scott, 95 Mo. 319; Vansickle v. Brown, 68 Mo. 634; 7 Ency. Ev., 596, 597, 598, 625, 626; Jones on Ev. (2 Ed.), sec. 170; 4 Ency. Ev., 170; North St. Louis Assn. v. Obert, 169 Mo. 515; Abb. T. B. 434. (5) Where the question is whether a deed was delivered, parol evidence is competent. Powell v. Banks, 146 Mo. 633; Vawter v. Hultz, 112 Mo. 640; Perkins v. Fielding, 119 Mo. 149; Burke v. Adams, 80 Mo. 513; Cravens v. Rossiter, 116 Mo. 344. Measure of proof. Burke v. Adams, 80 Mo. 513; Tobin v. Bass, 85 Mo. 658; Sheperd v. Transit Co., 189 Mo. 373. The alleged admissions are of little weight. Russell v. Sharp, 192 Mo. 289; Green v. Yarnall, 6 Mo. 326; Peters v. Berkemeier, 184 Mo. 393. Fraudulent intent cannot constitute a delivery. Koppelmann v. Koppelmann, 57 S.W. 572; Burke v. Adams, 80 Mo. 515; Barns v. Hatch, 14 Am. Dec. 369; Creamer v. Bivert, 214 Mo. 484. (6) The weight and credibility of the evidence is on the side of the plaintiff. Peters v. Berkemeier, 184 Mo. 393; Erler v. Erler, 124 Ia. 726; Richards v. Moran, 114 N.W. 1035; Culp v. Price, 107 Ia. 133; O'Connor v. O'Connor, 100 Ia. 476; Griffin v. McIntosh, 176 Mo. 392; Mfg. Co. v. Waring, 46 F. 106; 2 Moore on Facts, sec. 784. (7) The trial judge decided this case on a correct theory and understanding of the law. The appellate court will defer to the finding of the trial court. McNear v. Williamson, 166 Mo. 358; Metal Co. v. Daugherty, 204 Mo. 75; Finkelnburg, Mo.App. Prac. (2 Ed.), 149, 158, 163.
Plaintiff claiming to own the west one-half of the southwest quarter of section 9, township 62, range...
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