Cook v. Newby
| Decision Date | 03 July 1908 |
| Citation | 112 S.W. 272,213 Mo. 471 |
| Parties | MANCIL G. COOK v. LAURA A. NEWBY, JOHN H. NEWBY and HARRIETT COOK, Appellants |
| Court | Missouri Supreme Court |
Appeal from Gentry Circuit Court. -- Hon. W. C. Ellison, Judge.
Reversed and remanded (with directions).
Platt Hubbell and George Hubbell for appellants.
(1) The execution of the deed and its delivery to Axtell was in law a delivery to Laura A. Newby and John H. Newby, and conveyed the title to them in praesenti. 13 Cyc. 568, 570; White v. Pollock, 117 Mo. 467; Williams v. Latham, 113 Mo. 165; Standiford v. Standiford, 97 Mo. 231; Foreman v. Archer, 130 Iowa 49; Freeman v Trummer, 91 P. 1075; Tiedeman on Real Property, p. 650 sec. 815; Crowder v. Searcy, 103 Mo. 97; Martindale on Convey., secs. 211, 221, 225. (2) Since the terms on which Axtell held the deed were reduced to writing, parol testimony is not admissible to contradict or vary those terms. Hilgar v. Miller, 72 P. 319; 9 Encyc. of Ev., p 437; Ashley v. Bird, 1 Mo. 442; Lance v. Price, 5 Mo. 101; Jones v. Jeffries, 17 Mo. 577; Boggs v. Laundry Co., 171 Mo. 282; Bunce v. Beck, 43 Mo. 266; McMahon v. Turney, 45 Mo.App. 103; Neville v. Hughes, 104 Mo.App. 455; Deuser v. Hamilton, 52 Mo.App. 394; White v. Watts, 118 Iowa 549. (3) Even if parol testimony were admissible to contradict or vary this written memorandum, plaintiff has failed to establish his allegation that the grantors reserved the right to recall this deed. White v. Watts, 118 Iowa 549; Construction Co. v. Tie Co., 185 Mo. 25; Cook v. Foley, 152 F. 41. (4) The delivery to Simms only substituted Simms as the depositary in the place of Axtell. The rights of the parties became fixed by their delivery of the deed to Axtell. (5) Plaintiff has failed to establish his allegation that he did not consent to this deed being removed from the custody of Simms and recorded. Foreman v. Archor, 130 Iowa 49; Hoffmire v. Martin, 45 P. 754, 29 Ore. 240. (6) Plaintiff is bound by the stipulation of settlement. Powell v. Adams, 98 Mo. 598; Robinson v. Bobb, 139 Mo. 346; Crim v. Crim, 162 Mo. 544; McKissock v. Groom, 148 Mo. 459; Studybaker v. Cofield, 159 Mo. 596; 20 Encyc. of P. & P. 629, 632, 662. There was a valid consideration for the deed and for the stipulation. Taylor v. Crockett, 123 Mo. 300; Edwards v. Latimer, 183 Mo. 610; 6 Am. and Eng. Ency. Law (2 Ed.), 694, 712; 14 Ib. 1034, 1035. (7) A court of equity will not make a bargain or a contract for the parties, but will enforce the bargain and contract that the parties have made. McElroy v. Masterson, 156 F. 42.
E. C. Lockwood, W. F. Dalbey and C. H. S. Goodman for respondent.
(1) The deed was never delivered as a deed. Delivery is the transferring of a deed from the grantor to the grantee in such manner as to deprive him of the right to recall it. 1 Bouvier's Law Dict. (11 Ed.), p. 396; 3 Washburn, Real Property (6 Ed.), sec. 2143. (2) Without delivery the deed was invalid as a conveyance of title. 3 Washburn, Real Property (6 Ed.), sec. 2144. (3) In order to constitute a delivery within the meaning of the law the deed must have altogether passed from the dominion and control of plaintiff. 3 Washburn, Real Property (6 Ed.), sec. 2148. (4) It is immaterial for the purposes of this case what was the nature of the title conveyed by the instrument deposited with the Bank of McFall, the issues being the delivery of the deed and its being placed of record without authority of plaintiff. (5) Oral testimony of the circumstances attending the execution of the deed and its deposit with the Bank of McFall was admissible. 1. A parol contemporaneous agreement independent of and not inconsistent with the one reduced to writing is admissible in evidence. Greening v. Steele, 122 Mo. 287. 2. Where a part only of a contract is put in writing the omitted part may be established by parol. Greening v. Steele, 122 Mo. 287; Brown v. Brown, 90 Mo. 190; Black River Lumber Co. v. Warner, 93 Mo. 374; Edwards v. Smith, 63 Mo. 119; Bunce v. Beck, 43 Mo. 266; Moss v. Green, 41 Mo. 390; Rollins v. Claybrook, 22 Mo. 405; O'Neil v. Crain, 67 Mo. 250; Ellis v. Bray, 79 Mo. 227; Life Assn. v. Cravens, 60 Mo. 388; Roe v. Bank, 167 Mo. 406; 2 Burr Jones, Ev., sec. 445, p. 980; 1 Greenleaf, Ev. (12 Ed.), secs. 304-305r. (6) The deed in question was always subject to the grantor's control, and in such case there is no delivery. Prutsman v. Baker, 30 Wis. 644; Huey v. Huey, 65 Mo. 689; 2 Greenleaf, Ev. (8 Ed.), sec. 297; Jackson v. Phipps, 12 Johns. 421; Standiford v. Standiford, 97 Mo. 231; Tyler v. Hall, 106 Mo. 313; Scott v. Scott, 95 Mo. 300; Rogers v. Carey, 47 Mo. 232; Mudd v. Dillon, 166 Mo. 110; Bunn v. Stewart, 183 Mo. 375; Stokes v. Anderson, 4 L. R. A. 313. (7) The stipulation pleaded by the defense as a bar to the further prosecution of this suit is executory, without consideration, and unconscionable, and as such is incapable of being enforced in a court of equity. He who comes into a court of equity must come with clean hands. 1 Pomeroy's Eq. Jur., secs. 397, 400, 404; Miller v. Kilsay, 114 Mo.App. 598; Coleman v. Dannenberg Co., 103 Ga. 784; Gottfried v. Bray, 106 S.W. 639.
OPINION
By his bill in equity, and a count at law in ejectment, plaintiff sued the Newbys to set aside an unconditional warranty deed to 120 acres of land in Gentry county, Missouri, and the record of it, and to recover possession of the land. Such steps were taken that Harriett, wife of plaintiff, became a party defendant. A decree on the equity side going in favor of plaintiff and a judgment of ouster with one cent damages going on the count in ejectment, all the defendants appeal.
The equity count in substance sets forth that plaintiff is the owner of the land; that on July 20, 1903, he and his wife Harriett signed and acknowledged a warranty deed conveying the land to the Newbys, as husband and wife; that the deed was not delivered but was left with a depositary to be held until demanded by plaintiff; that without plaintiff's consent or knowledge the Newbys fraudulently obtained possession of it and caused it to be recorded for the purpose of defrauding plaintiff out of the land; that the deed purports to be for a consideration of the love grantors bore the grantees, and $ 100, but that said $ 100 and no other consideration was paid plaintiff for the land; that the deed and the record thereof are void and constitute a cloud upon plaintiff's title; wherefore, a decree is prayed adjudging plaintiff the legal and equitable owner of the real estate, that the deed and its record be cancelled, and for all proper relief.
The count in ejectment is conventional.
The Newbys filed an amended answer subdivided into counts, viz.:
The first count was a general denial of each and every allegation, saving those expressly admitted.
The second count states the deed was executed by plaintiff and his wife in the form of a general warranty and conveyed to the Newbys the real estate described; that it was for a good and valuable consideration acknowledged by grantors, and was duly put of record; that by virtue of it grantees are the owners of the land in fee simple absolute; that the plaintiff claims some title or right in and to said real estate, wherefore affirmative relief is asked [under section 650, R. S. 1899], to-wit, that the court ascertain and determine the title and right of the parties respectively and adjudge and decree title and for any other proper relief.
By the third count the Newbys say the deed was in the nature of a family settlement, giving to Laura A. Newby the portion she was to receive in the estate of plaintiff and his wife Harriett. That the defendant Laura A. is the child of Mancil G. and Harriett Cook and intermarried with her codefendant, John H.; that theretofore Mancil G. and Harriett had conveyed to their other children certain real estate by way of family settlement. By way of matter of inducement leading up to the conveyance, it is next alleged that Mancil G. and Harriett after the marriage of Laura A. contracted with her and her husband that the Cooks and Newbys were to live on the home farm and divide the profits in consideration of the Newbys assisting in maintaining a home for Mancil G and Harriett. That they entered into the performance of said agreement and the Newbys made valuable improvements on the farm, but the plaintiff, Mancil G., violated the contract and rented the farm to others and the Newbys then moved to a farm near Cameron, Missouri. That afterwards, Mancil G. and Harriett induced them to return under an agreement to convey the farm to them, but, on their compliance, neglected to make the deed pursuant to the agreement. That thereupon in March, 1903, the Newbys moved from the farm and rented another adjacent; that in July, 1903, the Cooks made a proposition that if the Newbys would return to the home farm it should be deeded to them. That having in mind the failure to perform the former agreements, they declined the offer unless the conveyance was made as a condition precedent to their return; that thereupon Mancil G. and Harriett promised and agreed to make such conveyance as such condition precedent, and in pursuance thereof all the parties met on July 20, 1903, and the deed was made; that when made it was delivered and placed in the possession of one Axtell to be held by him (under an agreement of the grantors and grantees) until the death of Mancil G. and Harriett when it was to be delivered by him to the Newbys and recorded; that Mancil G. and Harriett then and there relinquished all claim or right to said deed or the land, except the right of joint possession of said land with the Newbys; that the consideration of said deed was that the Newbys should keep certain...
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