Derry v. Fielder

• Decision Date: 23 December 1908
• Parties: DERRY v. FIELDER et al.
• Court: Missouri Supreme Court

115 S.W. 412

216 Mo. 176

DERRY v. FIELDER et al.

Supreme Court of Missouri, Division No. 1.

December 23, 1908.

Rehearing Denied January 14, 1909.

1. DEEDS (§ 32)—FORM AND CONTENTS—FILLING IN GRANTEE BLANK.

Where a deed is left blank as to the grantee, with authority in the grantors' agent to fill in the name of the grantee before delivery to the purchaser, and such agent, under direction of the grantors, fills in a name before delivery, the subsequent adding of names as grantees by the purchaser would not make them grantees.

2. DEEDS (§ 32)—FORM—FILLING IN GRANTEE BLANK.

Where a deed is executed in blank, with the knowledge or understanding that the purchaser is to be the agent of the grantors to fill in or dictate the name or names of a grantee or grantees, the filling in by him, or at his direction, later, after the deed is turned over to him, but before actual delivery, of several names, at different times, and through different scriveners, was valid.

3. DEEDS (§ 207) — FILLING IN GRANTEE BLANK—AUTHORITY—EVIDENCE.

Evidence in a suit involving right to property under a deed held to show that the grantors did not expressly direct C., their general agent, to fill in the blank for grantee or grantees, but left to the purchaser the agency to fill it in after the deed was turned over to him.

4. DEEDS (§ 59)—DELIVERY—TIME.

There was not an actual delivery of a deed till it was recorded, where it was turned over to the purchaser with authority to fill in the grantee blank, and he did so, and recorded it without previously turning it over to the persons whose name he filled in, or informing them thereof.

5. GIFTS (§ 47)—DEED OF LAND—PRESUMPTION.

Where the purchaser of land had the deed made to a daughter and granddaughters, the presumption is that it was a gift or an advancement, rather than a trust, though this may be overcome by parol evidence of the character necessary to establish a resulting trust.

6. TRUSTS (§ 89)—RESULTING TRUST—EVIDENCE.

The evidence to establish a resulting trust must be clear, strong, unequivocal, and so definite and positive as to leave no room for doubt.

7. EQUITY (§ 65)—CLEAN HANDS.

One who, to establish a resulting trust in lands, which he purchased and had deeded to his daughter and granddaughters, and to overcome the presumption of a gift to them, claims that he had it deeded to them so that, on his reselling it, he could have a deed made without his wife's joining, she having in other cases refused till she was paid therefor, does not come into court with clean hands.

8. APPEAL AND ERROR (§ 987)—REVIEW OF EVIDENCE—EQUITY.

In an equity case the Supreme Court has the power to review the evidence.

Appeal from Circuit Court, Carroll County; John P. Butler, Judge.

Suit by A. R. Derry against Emma Fielder and others. Decree for plaintiff. Defendants appeal. Reversed, with directions to dismiss.

Jones & Conkling, for appellants. L. H. Woodyard and Lozier, Morris & Atwood, for respondent.

GRAVES, J.

By his petition, the plaintiff sought to establish a resulting trust in and to house and lot in Bosworth, Mo. By his original petition he charged that he bought and paid for the property with his own means, and the party from whom he purchased, made, executed, and delivered the deed to him, which deed was to Emma Fielder, Anna Fielder, and Ethel Fielder, as grantees. After the evidence was in he was permitted to amend his petition in this regard, so as to read thus: "That said deed was executed in blank, as to the grantee, and, before the delivering thereof, by plaintiff's direction the name of Anna Fielder was inserted as grantee in said deed by the agent of said M. S. Gowin, and by the said deed the said real estate was conveyed to said Anna Fielder;" and the further amendment was made thus: "That on or about the ____ day of March. 1900, and just before said deed was filed for record, and long after said deed had been executed and delivered to plaintiff, the names of Emma Fielder and Ethel Fielder (now Ethel Fielder Bowman) were inserted in said deed in the blank for the grantee therein with that of Anna Fielder; that no consideration passed from said Emma Fielder or Ethel Fielder (now Ethel Fielder Bowman); that said insertion of said names did not vest in said Emma Fielder or Ethel Fielder (now Ethel Fielder Bowman), in law or fact, any right, title, interest, or estate in or to said real estate, but casts a cloud on said title." Each petition stated that Emma Fielder was the daughter of plaintiff, and that Anna Fielder and Ethel Fielder were his granddaughters, being the daughters of the said Emma Fielder. They each charge that the deed was then made as a matter of convenience, and not as a gift or advancement, and give as a reason that plaintiff's wife was absent at Washington, D.C., and he wanted to resell the property, and had the deed thus made so that he could conveniently convey to the purchaser. The original petition is not questioned as to sufficiency of allegation, nor is the amendment thereof urged as error, so that further detail will not be required. The court nisi decreed a resulting trust, and defendants appealed.

Under these circumstances, a rather full statement of facts will be required. Plaintiff, an old gentleman, was in the drug business in the town of Bosworth. He rented the building wherein was located his stock of drugs from one M. S. Gowin, who lived in Kansas, but who had a local agent at Bosworth—S. A. Clark. Plaintiff testifies that, in 1898, Clark, who had been trying to get plaintiff to purchase the property, finally told him that the property had been sold to another party, who would want possession, but that he would give plaintiff three days in which to say whether he would buy; that he was getting old and wanted to sell his stock of drugs, but owing to the size of it could not sell it to give possession of the home; that he finally concluded to buy the house and lot and keep it until he could sell his drug stock, and then sell it; the purchase price was $1,000, which he borrowed from the bank and paid to Clark as agent of Gowin; that his wife (a second wife) was on a visit in Washington City, to be gone some time; that prior thereto he had trouble in getting his wife to sign a deed to another piece of property which he had sold; that he had to give her $100 to sign it; that in view of the fact that he wanted to resell the property soon, and the absence of his wife from the state, he directed Clark to have Gowin and wife sign a deed, with a blank space left for the grantee; that the deed was so made out and acknowledged and returned to Clark; that he then directed Clark to insert the name of Anna Fielder, his granddaughter, as grantee, when the deed was delivered and the money paid; that he did this for the reason that it would be more convenient to have her make the deed to the purchaser than to get one signed by his wife whilst in Washington City; that he had confidence in his granddaughter, and thought she would deed it to his purchaser; that some time afterwards he spoke to Anna Fielder and told her what he had done, and that she agreed to deed to any purchaser he might find (this fact and conversation Anna Fielder emphatically denies). In chief, the plaintiff testified as stated above, and strictly maintained that the deed was so made for a mere matter of convenience, with no intent to make a gift or an advancement. Parts of the cross-examination lend some light to the situation. These parts are as follows:

"Q. How long after the deed was made to Anna was it until you had the name of Ethel Fielder and Emma Fielder written in the deed? A. Well, I can't just give you the exact time, but my health was awful poor, and I thought, in case anything should happen with me, that, Anna having the deed in her name, it would be more than I could afford to give her to equalize her with the other children, and I asked Mr. Lowrance, lawyer, if I couldn't add those two names. He told me, `Yes,' and he went over into my drug store and added the two names. Q. Was that soon after this deed was made? A. No, that was quite a while; I have no recollection just when the two names were added in; it was quite a while, though. Q. Was it after or before it was recorded? A. It was before it was recorded. Q. Now, Mr. Derry, why was it that you had the names of Miss Ethel Fielder and Mrs. Emma Fielder put in this deed as grantees? A. The reason I had that done was simply this: When I made that deed to Anna there, I made it so I wouldn't have any trouble making a deed to the next party if I sold it, and it went on a good while, I rented the property out, and my health got awful poor, and I was then about 75 or 76 years old, and men at that age sometimes drop off very sudden, and I thought, in case I should, why, it would all go to Anna, and it was more than I was able to give her to equalize her with the other children, and I had those two names put in there. I told Mrs. Fielder a good while afterwards that I had done that way, and I told her at the time, and I says, `If anything should happen to me,' I says, `You folks will get that for your part.' Q. Then you had these names inserted in this deed so that they would get their part? A. Yes, I says, `If I should die before I sold the property.' Q. Then you didn't deed this property to all three of these girls as a trustee? A. No, sir; well, I won't say that; yes, it was a trust you know—continuous trust; I just relied on the confidence I had in my family that they wouldn't go back on me, and I put them all three in. Q. You didn't add Miss Ethel Fielder's name and Mrs. Emma Fielder's name as a matter of convenience in selling the property? A. Yes, sir, put it there as a matter of convenience, in case I should sell the property, for them to make the deed. Q. All three of them? A. Yes, sir. Q. How long was your wife gone? A. Oh, I don't know, she was gone some considerable length of time, and, as I stated...