Fenton v. Fenton

• Decision Date: 14 July 1914
• Docket Number: No. 16768.,16768.
• Citation: 261 Mo. 202,168 S.W. 1152
• Parties: FENTON et al. v. FENTON et al.
• Court: Missouri Supreme Court

168 S.W. 1152

261 Mo. 202

FENTON et al. v. FENTON et al.

No. 16768.

Supreme Court of Missouri, Division No. 2.

July 14, 1914.

1. DEEDS (§ 56)—DELIVERY—EFFECT.

Where a grantor executed deeds to his children as a voluntary family settlement, and delivered the same to a child to be placed on record, title passed to the grantees, though the grantor subsequently obtained possession of the deeds and refused to deliver them or put them on record.

2. DEEDS (§ 58) — DELIVERY — ACTS CONSTITUTING.

Where a grantor delivered a deed to a third person to be recorded, the fact that he did not furnish the third person with money to pay for recording did not affect the passing of title to the grantee; for the acceptance of the duty by the third person to record was equivalent to an undertaking to record.

3. DEEDS (§ 194)—DELIVERY—ACCEPTANCE.

Where the grantees in deeds executed as a family settlement were minors at the time, their acceptance of the deeds will be presumed.

Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.

Action by Sylvia F. Fenton and others against Chas. F. Fenton and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

This is a controversy over 72 acres of land. The petition is in three counts. The first count alleges that Mary J. Fenton on October 31, 1901, conveyed to the defendant George W. Fenton 79 acres of land, to defendant Charles F. (Fred) Fenton 78½ acres, and to the plaintiffs 72 acres, all particularly described in the petition; she being the owner at the time of the conveyances and reserving a life estate in said land by the terms of said deeds. The petition alleges that the four plaintiffs were all minors at the date of said deeds; that the deed so made to plaintiffs was delivered to the defendants for the use and benefit of plaintiffs, and was, at the institution of the suit, in the possession and control of the defendants, and had never been recorded; that said George W. and Charles F. Fenton and these plaintiffs are the sole heirs of said Mary J. Fenton, who died in January, 1911; that plaintiffs are the owners in fee of the 72-acre tract. The petition then prays that the defendants be directed to deliver to the plaintiffs the deed so made to them, and that defendants be divested of all apparent title to said land, and that the same be vested in plaintiffs. Then follows a prayer that said land be partitioned and sold and the proceeds be distributed among the plaintiffs.

The second count is for partition of the same land, and seeks to charge the defendants Charles F. and George W. Fenton with advancements equal to their share of the land in controversy.

The third count is for the purpose of quieting the title against the heirs and legal representatives of a former owner of the land. These defendants made default, and judgment went against them.

At the date of the deeds the grantor, Mary F. Fenton, was an aged widow, with two sons, the defendants George W. and Charles F. (Fred) Fenton. These four plaintiffs are the children of her deceased son, Philip C. Fenton. She was living in the house on the tract in controversy. That tract was to some extent less valuable than each of the other two tracts mentioned. She went before Mr. Smith, as her lawyer, and had the three deeds prepared. She signed and acknowledged them and took them home with her. Shortly afterward she handed them to her son Fred. Concerning that transaction Fred testified as follows:

"I recall the circumstance of Mother turning over to me a deed to the 72 acres in question; I think this was in 1902, and was at her home. I was at her house on a visit. She asked me to come and go in the bedroom with her. I went in there, and she gave me these three papers. She says, `You have a safe at the store, haven't you?' I says, `Yes, ma'am.' She says, `You put them in your safe and keep them until I tell you what to do with them; keep them there for safe-keeping,' she says. I done exactly what Mother told me to do, put them in my safe in my store, and they were never touched from the time she gave them to me until the time she called for them, which was something like a year after that. I asked her what the papers were when she gave them to me, and she says, `You can read them as you go home and see.' She afterwards called for these deeds at my house. I took them out of the safe and handed them together to her just as she gave them to me to keep for safe-keeping. She handed me my deed back and says, `Fred, here is your deed; you can do as you please with it,' and she told me to tell George to do as he pleased with his, that he could have his, and she gave back to me George's deed. She did not give back to me the deed to the land in controversy, but took it with her. I have never had possession of that deed from that day until this, and, furthermore, since the time of the conversation she made to me at the time she asked for the deeds back, she says, `This deed I am going to change;' that was the deed for the seventy-three acres. She said, `If you will be the administrator for these heirs. I can fix it up some way at their death it will go back to the Fenton estate; I will do that; but otherwise they cannot have it.' I said, `Do just as you please, Ma, about it;' but I told her I wouldn't under any circumstances be their administrator. She says, `Then they will not get it.' By George's instruction I sent George's deed to W. W. Graves for record. I sent it through the mail. I do not remember whether he sent it back to me or to George."

George W. Fenton testified as to the deed to plaintiffs, as follows:

"I went with my mother to Adrian at the time she signed and acknowledged the deed to the plaintiffs before A. J. Smith. She afterward told me she had given this deed to Fred to keep for her until she called for it. I do not know the exact date when it was returned to her, but I guess from what she told me it was something like a year and a half later. I afterwards saw this deed among some of her other papers in the drawer of her dresser in her house, it remained there in the house five or six years. She and I cleaned out the...