Delaney v. Light

• Decision Date: 10 June 1924
• Docket Number: No. 24085.,24085.
• Parties: DELANEY et al. v. LIGHT.
• Court: Missouri Supreme Court

263 S.W. 813

DELANEY et al. v. LIGHT.

No. 24085.

Supreme Court of Missouri, Division No. 1.

June 10, 1924.

1. Appeal and error 566—Appellate court authorized to accept respondent's statement of facts as true under court rule.

Where respondent, not satisfied with appellant's statement of facts, under Supreme Court rule No. 15, prepared another, to which appellant filed no objections or exceptions, the court may accept the latter as true.

2. Alteration of instruments 17—Unauthorized insertion of name of grantee held to render deed void.

Deed in which grantor reserved exclusive right to insert name of grantee, and which was not to be done until a deed was executed to him, was void, where grantor never filled in grantee's name nor authorized any one else to do it, and name of grantee was filled in by agent and attorney of grantee, who paid him for his services for so doing, and paid for revenue stamps which were attached to deed.

3. Alteration of instruments 17—Grantee required by law to take notice of deed void on its face.

Where deed was void on its face, because of unauthorized insertion of name of grantee, grantee was by law required to take notice of that fact.

4. Deeds 56(2)—Deed held not to pass title by mere delivery.

Where grantor not only did not intend to part with title to land when he delivered deed, but also expressly refused to fill in name of grantee, no title passed, though he did assign in blank policies of insurance.

5. Deeds 56(2)—Mere delivery does not pass title without intent so to do.

A deed does not pass title by mere delivery of its possession, but there must be delivery for purpose of passing title, and grantor must intend to part with title and grantee intend to take title at time of delivery.

6. Deeds 76—Deed held not to pass tit:e to grantee or those claiming under him, where obtained by fraud.

Where deed was obtained from grantor by fraud, neither grantee nor those claiming under him acquired title.

7. Deeds 74—Action to set aside deed held act to involve equitable principle of estoppel in favor of defendants.

In an action to set aside a deed, no equitable principle of estoppel was involved, where defendant had notice at time of conveyance that grantor had not conveyed title and of the fraud attempted to be perpetrated upon grantor, and grantor did no reprehensible act which caused defendant to change his condition to his damage, had he acted as an ordinarily prudent person would have done under similar circumstances.

8. Estoppel 72—Rule that of two innocent parties one must suffer who made wrong possible held inapplicable in action to set aside deed.

In an action to set aside a deed, the principle that, where one of two innocent persons must suffer, he must suffer who made it possible for either to suffer, was inapplicable where grantor had been guilty of no conduct precluding relief, and had never delivered deed to any one with intention of passing title.

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

Suit by William H. Delaney and others against B. E. Light. Judgment for plaintiffs, and defendant appeals. Affirmed.

Arthur Bruton, of Centralia, and Don C. Carter, of Sturgeon, for appellant.

Harris & Price and Ruby M. Hulen, all Of Columbia, for respondents.

Statement.

WOODSON, J.

The plaintiffs brought this suit in the circuit court of Boone county, in equity, against the defendant, to set aside and cancel a certain alleged deed made by plaintiffs to defendant, and to remove the cloud cast upon the title of the plaintiff by said alleged deed.

A trial was had before the chancellor, which resulted in favor of the plaintiffs and against the defendant, canceling the deed and removing the cloud from the title. After moving unsuccessfully for a new trial the defendant duly appealed the cause to this court.

The bill is in conventional form in such cases, and is sufficient to present all the exceptions. Under that rule we are authorized to accept the latter statement as the true one, which we in the main adopt as the correct statement of the case.

The evidence for the respondent tended to show that the land in question consisted of a farm of 200 acres located about two miles northwest of Centralia, Boone county, Mo. The plaintiff William H. Delaney purchased this farm for $37,000 in the early part of the year 1920. Of the purchase price, $22,-000 was paid in cash, and a loan was obtained for the balance of $15,000 from an Eastern Loan Company. This loan is still against the property. Soon after purchasing the farm, the plaintiff, with his wife and five children, all of school age, took possession, and have ever since been in possession of the farm. Soon after taking possession of the farm, Mrs. Delaney became ill, and has ever since been in bad health, suffering from throat trouble, and has symptoms of the early stages of tuberculosis. Because of his wife's condition, Mr. Delaney went to one of the local real estate companies in Centralia and advised them that he would like to trade for some land in Colorado, where he wanted to move for his wife's health. The evidence shows that D. M. Jennings, of the real estate firm of D. M. Jennings & Co., corresponded with a Colorado land company with the view of making a trade for Mr. Delaney for some Colorado land.

As a result of this correspondence, Oscar Lund came to Centralia about the first of September, 1921, representing himself as the owner of land in Colorado, and seeking purchasers and traders. Lund was taken out to the Delaney farm by Elmer Wade, of the D. M. Jennings Real Estate Company, and who is the same Wade who later showed the farm in question to the defendant. After Mr. Delaney had met Lund and been informed by Lund of his holdings in Colorado, Mr. Delaney agreed to go to Colorado to look over the land, and did so, about the 10th of September, 1921. While in Colorado, Mr. Delaney became interested in a certain 160-acre tract of land that belonged to a man by the name of Thomas Holland, but did not make any contract of purchase or sale while in Colorado, but told Lund he would have to go home and talk the matter over with his wife.

Delaney returned to his farm near Centralia, and about a week after Delaney's return Lund again came to see Delaney with Mr. Wade, about a trade, with the result that on the 20th of September, in Wade's real estate office, Lund and Mr. Delaney entered into a contract whereby Mr. Delaney was to trade his equity in the Boone county farm for the 160-acre Holland farm in Colorado. The Delaney farm was valued at $40,000 in the trade. Owing to the fact that Delaney had a son who had another year before he would finish the high school in Centralia, it was agreed that Delaney could stay on the Centralia farm another year in consideration of allowing Lund the rent on the Colorado farm. Lund represented to Delaney that he had an option on several hundred acres of land in Colorado, including the Holland farm, and that he would procure a deed from Holland to himself and then make a deed to Mr. Delaney.

Sometime later, about the 10th of October, Lund again returned to Centralia, and Mr. Wade took him out to the Delaney farm, and Lund told Mr. Delaney that he was ready to close the deal. He at that time exhibited an abstract to the Holland farm, which showed title in Mr. Holland. That afternoon Mr. Delaney and his wife went to the Wade real estate office and again met Mr. Lund with Mr. Wade. Lund at that time exhibited a deed from Holland to himself for the Colorado land and a deed from himself to Delaney for the Colorado land, representing that he had a good title to the Colorado land. The deed from Holland to Lund was afterwards found to be a forgery. Lund had also prepared a deed for Mr. and Mrs. Delaney to sign, in which the grantee's name had not been inserted.

Mr. Delaney and his wife signed the deed; Lund stated that he was going back to Colorado, and that he could take the two deeds to the Colorado land and would have them recorded, and asked Mr. Delaney to let him have his deed to show some people in Kansas City that he was making the trade for the Delaney farm. Mr. Delaney objected to letting Lund have his deed, but finally consented on the understanding and agreement with Lund that the grantee's name was to be left blank in his deed until Lund had taken the Colorado deeds and had them recorded, and then he was to return them with an abstract showing title in Delaney, and to bring Mr. Delaney's deed back for Mr. Delaney to insert a grantee's name and affix revenue stamps, and that until that was done the blank deed was not to" operate to pass any title. The evidence as to this agreement is conclusive and undisputed. With that understanding, Lund left Centralia with the three deeds in his possession. About the 20th of October, 1921, a Mr. Quinby Came to Centralia and went out to the Delaney farm, and there represented to Mr. Delaney that he was considering a trade for the farm. He produced the blank deed that Mr. Delaney had signed and asked Mr. Delaney to fill in his (Quinby's) name as grantee. Mr. Delaney refused to do this, and told Mr. Quinby of his agreement with Lund, that no name was to be inserted in his deed until Lund returned from Colorado, and that he (Mr. Delaney) would then fill in the grantee's name and affix revenue stamps to it. Mr. Quinby also produced a note addressed to Mr. Delaney from Lund requesting Mr. Delaney to fill in the grantee's name in the deed. Quinby at that time induced Delaney to sign the insurance policies to him, stating that under the agreement he had with Lund unless they were signed no recovery could be had on them in case of loss. Quinby told Delaney that he had been in the insurance business for a great many years and knew that to be a fact. On Mr. Delaney's refusal to insert a grantee's name in the deed, Quinby put the deed back in his pocket and said nothing more about it to Mr. Delaney. While on the farm Quinby...