Dickson v. Maddox

• Decision Date: 08 April 1932
• Docket Number: 30046
• Citation: 48 S.W.2d 873,330 Mo. 51
• Parties: Carl Dickson, Appellant, v. Dempsey Maddox, Gertrude Maddox and Emma A. Dickson
• Court: Missouri Supreme Court

48 S.W.2d 873

330 Mo. 51

Carl Dickson, Appellant, v. Dempsey Maddox, Gertrude Maddox and Emma A. Dickson

No. 30046

Supreme Court of Missouri

April 8, 1932

Appeal from Chariton Circuit Court; Hon. Paul Van Osdol Judge.

Affirmed.

Roy Hamlin for appellant.

(1) A delivery of a deed by the grantor to the grantee, or someone for him, is essential to its operation as a convevance of title and no title can pass until there is a delivery. 8 R C. L. 973; Tobin v. Bass, 85 Mo. 654; Sneathen v. Sneathen, 104 Mo. 201; Tyler v. Hall, 106 Mo. 313. (a) Where a deed is delivered by the grantor to a third party, unconditionally and without reservation, to be handed to the grantee after the grantor's death the deed will be considered to pass title to the grantee. Sneathen v Sneathen, supra; White v. Pollock, 117 Mo. 467; 8 R. C. L. 995; 26 Harvard Law Review, 565 at 575. (b) Where the grantor, however, after delivering possession of the deed to a third party with instructions to hand the same to the grantee after the grantor's death, still maintains any dominion or control over the deed as but a right to take the same back at any time, no title can pass and a delivery after the death of the grantor (he not having exercised his right to retake the deeds) will be ineffectual to create any property right in the grantee. 26 Harvard Law Review at 575; Tiffany Real Property, sec. 406, p. 930; Huey v. Huey, 65 Mo. 689; Sneathen v. Sneathen, supra; Dallas v. McNutt, 249 S.W. 35; Harrison v. Edmondson, 248 S.W. 35; Krug v. Bremmer, 292 S.W. 702; Terry v. Glover, 235 Mo. 544; Stevens v. Stevens, 99 N.E. 917, 256 Ill. 140; Chambers v. Chambers, 227 Mo. 262; Abbee v. Donohue, 107 A. 431, 90 N.J.Eq. 597. (c) The controlling factor is the intention of the grantor and it is necessary that he should intend for his delivery to the third party to pass title immediately, absolutely and irrevocably to the grantee without retaining any right in himself (except the right of occupancy of the real estate during his own lifetime. Dallas v. McNutt, supra; Harrison v. Edmondson, supra; Stevens v. Stevens, supra; Cook v. Brown, 34 N.H. 460; 3 Grays cases on Property, 632. (d) In all of the Dickson cases the real question hinges upon one proposition, that is, as to whether the deeds in controversy were ever delivered to the grantees in the lifetime of the grantor. Wren v. Sturgeon, 184 S.W. 1037, and cases cited; Burkey v. Burkey, 175 S.W. 624. "To validate a deed there must be a delivery with the design of parting with title to the property, which delivery, in fact or by relation, must take effect in the lifetime of the grantor." The above citation is sustained by an array of authorities in this State, as follows: Schooler v. Schooler, 258 Mo. 95, 167 S.W. 444; Terry v. Glover, 235 Mo. 550, 139 S.W. 337; Chambers v. Chambers, 227 Mo. 282, 127 S.W. 86; 137 Am. St. Rep. 567; Cook v. Newby, 213 Mo. 490, 112 S.W. 272; McCune v. Goodwillie, 204 Mo. 338, 102 S.W. 997; Rausch v. Michel, 192 Mo. 311, 91 S.W. 99; Peters v. Berkemeier, 184 Mo. 403, 83 S.W. 747; Brunn v. Stewart, 183 Mo. 383, 81 S.W. 1091; Dohmen v. Schlief, 179 Mo. 600, 78 S.W. 799; Griffith v. McIntosch, 176 Mo. 400, 75 S.W. 677; McNear v. Williamson, 166 Mo. 367, 66 S.W. 160; Mudd v. Dillion, 166 Mo. 119, 65 S.W. 973; McVey v. Carry, 159 Mo. 652, 60 S.W. 1034; Powell v. Banks, 146 Mo. 633, 48 S.W. 664; Hall v. Banks, 145 Mo. 426, 46 S.W. 1000; Sneathen v. Sneathen, 104 Mo. 209, 16 S.W. 497, 24 Am. St. Rep. 326; Crowder v. Searcy, 103 Mo. 118, 15 S.W. 346; Standiford v. Standiford, 97 Mo. 238, 239, 10 S.W. 836; 3 L. R. A. 299; Tobin v. Bass, 85 Mo. 659, 55 Am. Rep. 392; Miller v. Lullman, 81 Mo. 317; Huey v. Huey, 65 Mo. 692 et seq.; Hammershlough v. Cheatham, 84 Mo. 13; White v. Pollock, 117 Mo. 472; In re Soulard's Estate, 141 Mo. 642; Kaener v. Williams, 271 S.W. 489, 307 Mo. 682. (2) The deed is to be considered as passing title as of the time of the delivery to the third party. The grantor's right of occupancy arises only because the actual physical possession of the deed is kept from the grantee and hence he cannot question the right of the grantor and no third person is in a position to do so. 26 Harvard Law Review, supra. (a) The fact that Emma Dickson is still alive and may have delivered the deeds to the grantees cannot bring about a valid delivery by her husband after his death. (b) Where a deed is made by several grantors there must be a delivery by each of the grantors and a delivery by one, after the death or refusal of another grantor to deliver, cannot make the deed operative. 13 Cyc. 565; Arthur v. Anderson, 9 S.C. 234. (3) The fact that the grantor continued to treat the property involved as his own by collecting rents therefrom, occupying it himself, etc., after the delivery to Laker, raises a presumption that he did not intend by that delivery to divest himself of all dominion and control over the deeds and that therefore there was no valid delivery to the grantees and the deeds are void. 8 R. C. L. p. 1002, sec. 64, and cases cited in note 8.

John D. Taylor for respondents.

(1) A deed delivered by the grantor to a third person to be delivered to the grantee, and by such third person delivered to the grantee, will constitute a good delivery, though the grantor is dead at the date of the last delivery. Sneathen v. Sneathen, 104 Mo. 209; Schooler v. Schooler, 258 Mo. 83. (2) The delivery of a deed is a matter of intent, and whether or not it is absolute depends upon the facts. Peterman v. Peterman, 286 Mo. 375. (3) Delivery of a deed by the maker to a third person for delivery to the grantee after grantor's death is sufficient delivery, if the grantor releases his dominion over the instrument and at the time intends to divest himself of the title and of all further control of the deed. Van Huff v. Wagner, 315 Mo. 922. (4) That the endorsement on the envelope did not truly express the intention of the parties could be proved by parol. 22 C. J. p. 1224, art. 1632 (k).

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

This suit was brought in the Circuit Court of Chariton County to set aside a deed or deeds made by Willis G. Dickson and his wife, Emma A. Dickson, conveying lands in said county to Dempsey Maddox and his wife Gertrude and their bodily heirs. Judgment was for the defendants and plaintiff appeals. Plaintiff is the grandson and sole heir of Willis G Dickson, who was dead when suit was brought, and claims as such heir. Defendant Emma A. Dickson is the widow of said Willis. Defendant Maddox is her son by a former marriage and defendant Gertrude Maddox is his wife.

There were two counts in the petition, the first asking cancellation of a deed of Willis G. Dickson and Emma A. Dickson to Dempsey and Gertrude Maddox and their bodily heirs and the second asking cancellation of a deed of Emma A. Dickson and Willis G. Dickson to the same grantees. The two counts are similar except for the description of the lands involved and the following differences: In the deed described in the first count Willis G. Dickson is named first as grantor and the deed contains the following condition; "that Mrs. Emma A. Dickson, wife of Willis G. Dickson, shall have full control and possession of the above conveyed property during her natural life;" while in the deed described in the second count Emma A. Dickson is named first as grantor and the condition is that she shall retain (instead of have) full control and possession during her natural life. The court found the issues, in general terms, for the defendants and against plaintiff and that defendants were the owners of the lands "described in plaintiff's petition," but in describing the lands the judgment describes only those mentioned in the first count. Mr. and Mrs. Dickson each owned lands in Chariton County and each at the same time executed deeds conveying portions of their respective lands to Dempsey and Gertrude Maddox and other deeds conveying other portions to other grantees, as will more fully appear hereafter. The evidence does not show whether the lands described in the second count belonged to Willis G. or to Emma A. Dickson. From the facts shown we think it likely that they belonged to Mrs. Dickson, in which event the plaintiff would have no interest therein, which may account for the obscurity of the record on that point. No point is made on this appeal that the judgment is not responsive to the pleadings and evidence and we shall give that matter no further attention.

The case hinges upon the question whether or not there was a delivery of the deed. If so, the judgment was for the right parties, otherwise not. In appellant's assignment of errors there are certain complaints of alleged error in the admission and rejection of evidence. These are not briefed nor elsewhere mentioned in appellant's statement, brief and printed argument and will be treated as abandoned. [See McCollum v. Watts, 319 Mo. 769, 5 S.W.2d 420, 426; Moffett Bros. & Andrews Comm. Co. v. Kent (Mo.), 5 S.W.2d 395, 403.] There were allegations in the petition to the effect that Willis G. Dickson, at the time of making the deeds, was mentally weak and easily influenced because of old age and sickness and that the execution by him of the deeds was procured by undue influence and fraud on the part of defendants, but there was no evidence offered to support those charges and they were abandoned at the trial.

The deeds in question were executed May 27, 1926. Mr. Dickson is referred to as being then an old man. His exact age is not shown. Plaintiff, his grandson, was then twenty-three years old. Emma A. was Dickson's second wife. By his first marriage he had three children, two of whom died in infancy. The other, a son, grew up, married and died many years ago...