Creamer v. Bivert

• Decision Date: 25 November 1908
• Citation: 214 Mo. 473,113 S.W. 1118
• Parties: CREAMER v. BIVERT.
• Court: Missouri Supreme Court

113 S.W. 1118

214 Mo. 473

CREAMER v. BIVERT.

Supreme Court of Missouri, Division No. 1.

November 25, 1908.

1. APPEAL AND ERROR (§ 1009) — REVIEW — QUESTIONS OF FACT — EQUITY CASES.

Notwithstanding the Supreme Court has, in an equity case, the right to review and weigh the evidence, deference should be given to the findings of the trial chancellor.

2. APPEAL AND ERROR (§ 1009) — REVIEW — QUESTIONS OF FACT — EQUITY CASES.

Where an issue in equity rests alone on the credibility of witnesses, the Supreme Court may with entire propriety rest somewhat on the superior

advantage of the lower court in determining a fact.

3. DEEDS (§ 210) — CONSIDERATION — EVIDENCE.

Evidence on an issue whether there had been any consideration for a deed by a brother to his sister held to warrant a finding that there had been none.

4. DEEDS (§ 72) — VALIDITY — UNDUE INFLUENCE — CONFIDENTIAL RELATIONS.

Where, notwithstanding grantor of land and grantee were brother and sister respectively, their relation is not shown to have put one in the vantage ground of managing or controlling the business and conduct of the other, and it does not appear that her mind held mastery over his, the conveyance is clear of any fiduciary relation, and the solicitude with which equity watches such a relation cannot be invoked to set it aside.

5. QUIETING TITLE (§ 7) — RIGHT OF ACTION — CLOUD ON TITLE.

A deed not delivered is not operative as a conveyance, and its record creates a cloud removable in equity; but, if delivered, it passes title, and its mere record alone gives no cause of action.

6. DEEDS (§ 44) — EXECUTION — "EXECUTED DEED."

An "executed" deed is a deed signed, sealed if necessary, acknowledged if necessary, and delivered.

7. DEEDS (§ 208) — DELIVERY — EVIDENCE.

Evidence on an issue of whether a deed by a brother to his sister had been delivered held to show that it had.

8. FRAUDULENT CONVEYANCES (§ 174) — VALIDITY BETWEEN PARTIES — PARTIES IN PARI DELICTO.

A grantor who, being threatened with a suit for damages, conveyed the premises to defeat collection of the judgment, will be denied relief in equity against the conveyance, because of public policy.

9. EQUITY (§ 65) — EQUITABLE MAXIMS — APPLICATION.

The application of the maxim that he who comes into equity must come with clean hands does not depend upon the averments of the pleadings or the wish of counsel, but may be invoked ex mero motu by the court.

10. FRAUDULENT CONVEYANCES (§ 174) — ACTION TO SET ASIDE — PERSONS ENTITLED TO RELIEF — PARTIES IN PARI DELICTO.

A grantee of premises conveyed to defeat the collection of the judgment for damages threatened against the grantor will be denied affirmative relief, because of public policy, in an action by the grantor to set aside the deed.

Appeal from Circuit Court, Gentry County; Wm. C. Ellison, Judge.

Bill by Jackson Creamer against Rosalie Bivert. Decree for plaintiff, and defendant appeals. Reversed, and remanded with directions.

C. H. S. Goodman and C. E. Ernst, for appellant. Allen, Gabbert & Mitchell, W. F. Dalbey, and R. L. Nichols, for respondent.

LAMM, J.

From a decree of the Gentry circuit court adjudging a certain deed conveying 100 acres of land from plaintiff to his sister, Rosalie, null and void, and divesting the record title out of her and into him, defendant appeals.

The bill is subdivided into counts. If that method of pleading be not somewhat of an innovation on modern equity practice, yet the counts as such need no attention, for the gravamen of both is the same, the first merely stating the cause of action with more fullness of detail than the second.

It is alleged in the bill that plaintiff is the owner of the north half of the northwest quarter of section 15, and 20 acres off of the south end of the southwest quarter of the southwest quarter of section 10, all in township 63, range 31, in Gentry county, and is and has been for 40 years in possession; that on May 15, 1890, he was threatened by one Sarah Kuhey with a suit for damages for breach of promise to marry; that, having in view the disposition of his land, he "did make and execute" a warranty deed on said date, purporting to convey said real estate to defendant; that he acknowledged it; that defendant induced him to make it by stating to him she would assist him thereby in preventing said Sarah Kuhey "from securing said land or taking said land under and by virtue of any suit instituted or that might thereafter be instituted by her," said Kuhey; that, defendant being his sister, he implicitly trusted her and relied upon her said statements and promises; that the deed was without consideration; that plaintiff never intended to part with his dominion or control over it, and never delivered it to defendant for the purpose of conveying said land, but that when it was handed to defendant "it was mutually agreed by this plaintiff and defendant that said deed executed as aforesaid should be handed to defendant to be held and kept by her for this plaintiff, and that said deed should be returned to this plaintiff whenever he should demand same, and that in no event should it be placed on record in the recorder's office in said county, and that defendant, at the time said deed was handed her by plaintiff, promised plaintiff that she would merely hold said deed in her possession without recording same, and subject to his recall whenever he should demand same"; that afterwards without plaintiff's knowledge or consent, defendant wrongfully and deceitfully caused said deed to be put of record; that afterwards on the 30th day of November, 1900, plaintiff settled his differences with Sarah Kuhey and married her; that afterwards, at divers times (without avail), he requested defendant to return said deed, he not knowing it had been recorded; and that when he found it was recorded he requested her to quitclaim the land back, but she refused to do so.

The answer admitted Rosalie holds title by virtue of the deed, but denies each and every other allegation in the petition. It next goes on to allege that she is the rightful owner of the premises; that she purchased the same for a full and valuable consideration paid by her; that the conveyance was intended to be operative in conveying the legal title. Based on such allegations, she prayed affirmative equitable relief, viz., that the court declare she is in good faith the legal and rightful owner of the premises, discharged of any equity or trust whatsoever, and for all other and proper relief.

On such paper issues the cause was tried, and the chancellor found (1) there was no consideration for the deed, and (2) there was no delivery of the deed. On these findings the decree went as prayed in the bill.

The case on appeal presents three propositions, viz.: First. Was there error, nisi, in finding no consideration for the deed? Second. Did the chancellor err in finding there was no delivery of the deed? Third. On all the facts, will a court of conscience interfere?

1. Of payment. There was testimony by plaintiff that no valid or valuable consideration passed from defendant to him. Creamer testified that way. He introduced witnesses who testified to facts pointing the same way, and strongly corroborative to the effect that in 1890 Rosalie lived in a humble way in the town of Albany, and eked out a scant living for herself and family as a washwoman; that she had no visible signs of ready money, and practically admitted to others she paid nothing. Contra, defendant put in proof on the issue of payment, in substance, that the money was paid shortly after the date of the deed partly out of Rosalie's savings as a washwoman, partly out of her savings in raising and selling chickens, a few pigs, and a cow or so each year, and partly out of money sent and brought to her by Louis, her son, who on coming to man's estate worked in Colorado in restaurants and saloons at $40 per month, and who went to Oklahoma at the opening of the territory for settlement. This money had been kept in a wardrobe in an upper chamber hid in the lining of an old fur muff, which said muff had a somewhat picturesque and variegated career. Not only was it at the start a wedding present, and presently the family money chest, but at a certain time it was put out in the sunshine to rid it of moths, when a puppy (not understanding or respecting the purpose of its appearance within his reach and runways, nor its value as a family receptacle for money) appropriated it to his own use, and when through with it, it became straightway a reminiscence, as distinguished from a fact susceptible of tangible evidence by tender in open court.

If the issue of payment or no payment is to be determined by the mere bulk of the testimony and the number of the witnesses pro and con, then defendant had the better of it, for the existence of the muff, its use in secreting treasure, the existence of the hidden treasure itself, and its appropriation in paying for the land are shown by the copious testimony of several members of the Bivert family. As against their positive testimony stands that of plaintiff himself, supported by corroborative proof of the character stated. But the justice of a cause does not alone hang or turn on the count of witnesses on the fingers, or on mere numerical weight. That (by itself) would be a crude rule for establishing a fact. The philosophy of the plan of getting at the fact, in cases of conflict in testimony, has deeper and more sure guides than such easy scheme. Here there was a maze of testimony affecting the credibility of some of the witnesses on both sides; there were currents and cross-currents in it sharply affecting the probability and the improbability of the stories told on the stand. The bulk of the testimony was oral. In such condition of things, while this court has said over and over again that the whole record must come here in equity cases, so that (sitting as the final arbiter in chancery) we may weigh and...