Crowder v. Searcy

• Decision Date: 10 February 1891
• Citation: 15 S.W. 346,103 Mo. 97
• Parties: Crowder et al. v. Searcy et al., Appellants
• Court: Missouri Supreme Court

15 S.W. 346

103 Mo. 97

Crowder et al. v. Searcy et al., Appellants

Supreme Court of Missouri, Second Division

February 10, 1891

Appeal from Daviess Circuit Court. -- Hon. C. H. S. Goodman, Judge.

Reversed.

Hicklin & Yates and G. A. Chapman for appellants.

(1) The court did not err in striking out part of defendants' answer. The first deed was a valid one. (2) The evidence shows a valid execution and delivery of the second deed. 1 Devlin on Deeds, sec. 262; 2 Greenleaf's Ev., sec. 297; Huey v. Huey, 65 Mo. 689. (3) The lower court erred in disregarding the verdict of the jury and their answer to the interrogatories. Jones v. Swayse, 42 N. J. Law, 279.

Rush Alexander & Richardson for respondents.

(1) The court did not err in striking out the part of the answer indicated. R. S. 1879, sec. 3529; Bliss Code Pleading, sec 423. (2) Appellants also assign as error that the court erred in rendering judgment avoiding the deed because of its non-delivery. One of the grounds upon which plaintiffs seek to avoid the deed is non-delivery, and if the evidence fails to show that it was delivered the decree is right, for delivery is essential to the complete execution of a deed and if not delivered it is of no more effect than if not signed. Hammerslaugh v. Cheatham, 84 Mo. 13; Huey v. Huey, 65 Mo. 689; 3 Wash. on Real Prop. [3 Ed.] p. 254, secs. 20-20 a. (3) The execution and acknowledgment of a deed, although made in pursuance of a prior agreement, do not constitute a delivery. So long as it remains undelivered it is inoperative as a conveyance. Turner v. Carpenter, 83 Mo. 333; Fountain v. Saving Inst., 57 Mo. 552. What is necessary to constitute a delivery of a deed? Turner v. Carpenter, 83 Mo., supra.

OPINION

Gantt, P. J.

The plaintiffs, Pocahontas and Cassandra Crowder and Martha Moore, are the daughters of Francis Searcy, deceased. The defendant, Smith Searcy, is his only son, and Ada, Martha and Effie are the daughters of Smith Searcy, and granddaughters of Francis Searcy.

Francis Searcy died March 10, 1883. Prior to his death, Francis Searcy was the owner of the following real estate in Daviess county, Missouri, to-wit: All that part of southwest quarter of southeast quarter of section six (6) contained inside the fence around said house and lot on said forty acres, containing eight acres more or less; also twenty acres off of the east side of the west half of the southeast quarter of section seven (7), also two acres, more or less, out of the northwest corner of the southwest quarter of the northwest quarter of section eight (8); also four acres, more or less, off of the southwest corner of section 8, all in township number 59, range 29.

On the eighth day of March, 1883, a general warranty deed from Francis Searcy to Ada, Martha and Effie Searcy, conveying the above-described land, purporting to have been executed and acknowledged on March 5, 1883, was filed for record in the office of the recorder of deeds of Daviess county, and was recorded in book 44, page 282. This is a suit in equity to set aside said deed, on the ground that Francis Searcy was, at the date of its alleged execution, of unsound mind and enfeebled intellect, and charging that he did not execute said deed, nor authorize it, and that it was delivered without his knowledge or consent to the recorder for record.

The petition was filed November 25, 1885, and the answer November 15, 1886.

"The defendants, Ada F. Searcy, Martha E. Searcy and Effie M. Searcy, for their answer to plaintiffs' petition, say that Francis Searcy, mentioned in plaintiffs' petition, died on the day of March, 1883, leaving surviving him his following-named children and heirs at law, viz.: Plaintiffs, Pocahontas Crowder, Cassandra Crowder and Martha Moore, and defendant, Smith P. Searcy. The defendants, Ada F. Searcy, Martha E. Searcy and Effie M. Searcy, are the children of the above named Smith P. Searcy and the granddaughters of said Francis Searcy, deceased.

["That some time prior to his death, to-wit, on the day of 1883, the said Francis Searcy, by warranty deed, conveyed certain lands of which he was the owner to said Cassandra Crowder; at the same time or about the same time he, by warranty deed, conveyed certain other of his lands to said Martha Moore, and, about the same time or at a prior time, the said Francis Searcy conveyed by sufficient deed certain portions of his remaining lands to said Smith P. Searcy, and also gave his daughter, Cassandra Crowder, a large amount of personal property, the aforesaid lands and personal property being bestowed as gifts by said Francis Searcy upon his said children.

"That the said Francis Searcy regarding with much favor and affection his three grandchildren, the defendants, Ada F. Searcy, Martha E. Searcy and Effie M. Searcy, on the day of 1883, at the time he was deeding the above-mentioned lands to his children, Cassandra Crowder, Martha Moore and Smith P. Searcy, also by warranty deed in legal form conveyed a quantity of his remaining lands to his said granddaughters, the defendants, Ada F. Searcy, Martha E. Searcy and Effie M. Searcy, which last-mentioned deed included the lands described in plaintiffs' petition. This last-mentioned deed was duly executed by said Francis Searcy and was delivered by him to his said grandchildren, Ada F., Martha E. and Effie M. Searcy, the defendants herein. By this last-mentioned deed the said Francis Searcy, being of sound mind, intended to convey, and did convey, the lands described in plaintiffs' petition to said Ada F., Martha E. and Effie M. Searcy, his said granddaughters.

"That before this last-mentioned deed was recorded it was ascertained by said Francis Searcy that said deed by mistake of the conveyancer, who wrote said deed, included and conveyed twenty acres of other lands, besides that described in plaintiffs' petition, which twenty acres said Francis Searcy did not intend to convey to his said granddaughters, but intended to convey only the land as described in plaintiffs' petition. In the making of this deed this mistake was not noticed by said Francis Searcy, owing to the lengthy and detailed description in said deed of said lands.]

"That on the fifth day of March, 1883, the said Francis Searcy, for the purpose of correcting the mistake referred to above, and intending to correct said mistake, executed and delivered to defendants, Ada F., Martha E. and Effie M. Searcy, a warranty deed for the land described in plaintiffs' petition, and for no other lands, which deed is recorded in book 44, at page 282, of the deed records of Daviess county, Missouri, and is the deed referred to in plaintiffs' petition; that at the time the said last-mentioned deed was executed the said Francis Searcy was of sound mind and of sufficient capacity to execute said deed and knew full well what disposition he was making of his said lands.

"That in executing and delivering said last-mentioned deed to his grandchildren, Ada F., Martha E. and Effie M. Searcy, the said Francis Searcy intended to convey and did convey the lands mentioned in said deed and described in plaintiffs' petition to said Ada F., Martha E. and Effie M. Searcy.

"Defendants, further answering, deny each and every allegation in plaintiffs' petition, except such as are herein admitted, and pray that they may be discharged with their costs and also for other and proper relief."

On the motion of the plaintiffs, the circuit court struck out all that portion of defendants' answer relating to the execution of a prior deed and included in brackets in this report. To this action of the court defendants duly saved their exception.

The cause was tried at the February term, 1887, of Daviess circuit court. A jury was impaneled to determine certain special issues, to-wit: "Did Francis Searcy, the grantor in the deed mentioned in plaintiffs' petition, have sufficient mental capacity at the time he signed said deed to comprehend what disposition he was making of the land mentioned in said deed?" And, "Was there a delivery of said deed?"

Thomas B. Crowder, a brother of Hugh and John F. Crowder, the plaintiffs, testified: He was well acquainted with Francis Searcy. He died March 10, 1883. He was eighty-nine years old. He lived with his son-in-law, Hugh Crowder. Witness was present when deed in question was executed, also some pension papers. Remembers Esq. R. N. Moore, the justice, presenting the deed and pension papers to Francis Searcy for him to sign. Moore said to the old man, who was lying on his bed with a broken leg, "Uncle Frank, I have got those papers for you to sign." "Don't think Searcy made any reply, but he might." Witness held the book and the deed and pension papers were laid on the book for Searcy to sign. Moore raised his hand and held it for him to sign. Moore made the mark. Searcy had been palsied many years. "I do not think he was competent to transact business. Long before this transaction, Francis Searcy made a deed to the defendants to the lands in question, save there was a mistake in describing thirty acres. By mistake, he left out of the first deed thirty acres of the homestead and included in it thirty acres he had conveyed to his daughter Martha Moore." Witness knew nothing of the execution of the first deed, until on one occasion, being at the residence of Francis Searcy, "The old gentleman called to his daughter, Cassandra Crowder, and told her to get some deeds out of his trunk, saying he wanted me to have them recorded. His daughter brought the three deeds. One to his daughter Pocahontas, one to Cassandra, and one to defendants, his granddaughters. He handed her the three deeds, and directed me to record them. Called for his pocket book, and gave me $ 4.50, $ 1.50 to record each deed. I had the...