Hall v. Hall
| Decision Date | 02 December 1891 |
| Citation | 17 S.W. 811,107 Mo. 101 |
| Parties | Hall v. Hall, Appellant |
| Court | Missouri Supreme Court |
Appeal from Andrew Circuit Court. -- Hon. A. W. Anthony, Judge.
Reversed and remanded.
H. S Kelley and J. A. Sanders for appellant.
(1) The court erred in overruling defendant's instruction in the nature of a demurrer to the evidence. There was no delivery of the deed from Beecraft to plaintiff or to anyone for his use. Newell v. Holdridge, 43 N.W. 84. The defendant paid for the land and was the equitable owner, and had a right to hold the deed or dispose of it as he saw fit. Newell v. Holdridge, 43 N.W. 84, supra. (2) The plaintiff not being in possession of the land could not maintain an action to quiet title, so that the judgment on the second count of the petition is erroneous -- the petition not stating facts sufficient to constitute a cause of action. Graves v. Ewart, 99 Mo. 13. (3) The court erred in refusing declarations of law asked by defendant, numbered 1 and 2. These instructions were based on the undisputed testimony in the case, and properly declare the law. First. Delivery and acceptance ordinarily are essential to the validity of a deed. There was neither delivery nor acceptance, in this case, of the deed. 2 Wash. Real Prop 580-2; Thulie v. Scoville, 4 Gilm. 177. The fact of delivery must be determined by what is said and done after the execution of the deed. Turner v. Carpenter, 83 Mo. 333. Second. It is wellsettled law that a deed takes effect from delivery only. Fountain v. Bank, 57 Mo 552; Hammerslough v. Cheatham, 84 Mo. 13; Turner v. Carpenter, 83 Mo. 333; Taylor v. Davis, 72 Mo. 291; Huey v. Huey, 65 Mo. 689; Flannigan v. Goggins, 36 N.W. 846; Watson v. Hillman, 24 N.W. 663. Third. The intention generally controls, but it must be manifested by acts or words, or both. 5 Am. & Eng. Ency. Law, 445, title deeds; Hill v. Nichols, 13 A. 833; Scott v. Scott, 95 Mo. 300; Blackman v. Preston, 15 N.E. 42; Stiffian v. Milmo, 6 S.W. 823. Fourth. If a deed be acknowledged and recorded the law presumes a delivery. Kane v. McCowen, 55 Mo. 181; Burke v. Adams, 80 Mo. 504; Town Co. v. Anderson, 13 Mo.App. 429. But this may be explained. Stevens v. Castel, 29 N.W. 828, and cases cited. When deed is made by parent to minor child and recorded by the parent, this is deemed a delivery. Tobin v. Bass, 85 Mo. 654; Colee v. Colee, 23 N.E. 687; 122 Ind. 109; Orr v. Clark, 19 A. 929; Messelback v. Norman, 46 Hun, 414; 5 Am. & Eng. Ency. Law, 449. But not when father retains possession of deed and receives rents and profits, and holds the place, etc. Fair v. Smith, 12 P. 365 (Or.) ; Appeal of Durand, 8 A. 922; Ireland v. Geraghty, 15 F. 39; Fisher v. Hall, 41 N.Y. 421; 15 P. 369. When the deed is made by the direction of the husband to wife, or of parent to child, by a third person, and delivered to such husband or parent, and retained by him, the deed is not operative as a conveyance, for want of delivery. Stevens v. Castel, 29 N.W. 828; 63 Mich. 111; Moore v. Flynn, 25 N.E. 844; Newell v. Holdridge, 43 N.W. 84. (4) The court erred in refusing the fifth instruction asked by defendant. There was no evidence that defendant intended the land in controversy to be an advancement to plaintiff. Darrier v. Darrier, 58 Mo. 227; Perry on Trusts, sec. 143, et seq.; 2 Story, Eq. sec. 1201. (5) The court erred in overruling defendant's motion for a new trial. For reasons, see brief and argument of appellant. (6) The motion in arrest should have been sustained. The second count of the petition did not state facts sufficient to constitute a cause of action -- to entitle plaintiff to equitable relief. It shows that he was not in possession of the land.
David Rea and Joseph Rea for respondent.
(1) The court committed no error in overruling defendant's declaration of law in the nature of a demurrer to the evidence. There was evidence, we think, showing the execution of the deed to plaintiff, and the delivery of the same by Beecraft, the grantor, to defendant for the use of plaintiff. (2) No error was committed by the court in refusing declarations of law asked for by defendant, numbered 1 and 2. These declarations of law are based upon the theory that there was no evidence tending to prove delivery of the deed to plaintiff or to defendant for his use. (3) The petition states facts sufficient to constitute a cause of action. The judgment on the second count of the petition was not erroneous, but was justified by the pleadings and evidence. Graves v. Ewart, 99 Mo. 13; Mason v. Black, 87 Mo. 330; Davis v. Sloan, 95 Mo. 552; Clark v. Ins. Co., 52 Mo. 272. (4) The deed was made to plaintiff, and the delivery of the same by the grantor to the defendant, under the circumstances detailed in evidence, constituted a delivery to plaintiff and vested the title in him. 3 Wash. on Real prop. [3 Ed.] 260-265; Hammerslough v. Cheatham, 84 Mo. 13; Tobin v. Bass, 85 Mo. 654; Fisher v. Hall, 41 N. Y. App. 416; Souverbye v. Arden, 1 John. Chan. 240; Huey v. Huey, 65 Mo. 689; Lumber Co. v. Anderson, 13 Mo.App. 429; Willard on Real Estate & Conveyancing, p. 385. (5) The deed having been made to the infant son of defendant, the presumption of law is that it was an advancement. Darrier v. Darrier, 58 Mo. 222; 2 Story, Eq. [7 Ed.] sec. 1201, and note 1. (6) Upon the execution of the deed to plaintiff, and the delivery thereof to defendant, under the circumstances given in evidence, the title vested in plaintiff, and the fact that defendant changed the name of Jesse Hall, the grantee in said deed, and made it read John Hall, did not divest plaintiff of his title. Tibeau v. Tibeau, 19 Mo. 78; Alexander v. Hickox, 34 Mo. 496; Parsons v. Parsons, 45 Mo. 265. (7) In an equitable proceeding to remove a cloud on title to real estate, the court may issue a writ of possession to put the complainant into possession. Mason v. Black, 87 Mo. 330; Woodsworth v. Tanner, 94 Mo. 124; Henderson v. Dickey, 50 Mo. 161.
The petition contains two counts. The first is ejectment to recover about twenty-eight acres of land in Andrew county. The second is in equity, in which plaintiff alleges that defendant is his father, and on the sixth day of January, 1866, plaintiff was an infant living with him and in his family; that on said day one Beecraft conveyed to plaintiff the land in controversy by good and sufficient deed, which was delivered to defendant, who took the same into his possession to keep and hold for plaintiff; that afterwards defendant fraudulently, and without the knowledge or consent of plaintiff, erased the name of plaintiff as grantee therein and inserted his own, and had the deed as so changed, recorded; that the deed, as recorded, constituted a cloud upon plaintiff's title. The prayer was that the cloud be removed and plaintiff's title be decreed.
The answer was a general denial, and a special defense in which it was set up that defendant paid the full amount of the purchase price for the land, a part of which belonged to his brother, Jesse Hall who was then absent from the state; that he bought the land for his own use and benefit; that he had lived on it, making it his home from the date of the purchase to the present time; that at the time of purchasing the land plaintiff was an infant, under two years of age, paid no part of the purchase money, and no deed was made to him or for his benefit. The case was tried to the court without a jury.
The evidence shows a state of facts that do not commend plaintiff for his filial regard for his father. It shows that for some years prior to the date of this deed defendant had lived on this small tract of land presumably as a tenant; that on that day he bought the land from Beecraft, for which he paid him $ 560, which appears to have been about all his possessions. When the deed was written, defendant directed the writer to insert the name of Jesse Hall as grantee therein. This was done, and the deed delivered to defendant, who retained it until about 1870, when he erased the name Jesse, and inserted instead that of John, thus making himself the grantee. A few years thereafter he had the deed recorded. From the date of the deed in 1866 to the commencement of this suit he occupied and used the land as his homestead, made improvements, and paid the taxes thereon.
These facts are substantially undisputed. Plaintiff testified that prior to 1860, himself and his brother Jesse had worked together dividing the earnings; that his brother left home in 1860, leaving in his hands some property, the proceeds of which constituted a part of the consideration paid for the land, and on that account he had the deed made to him in order to secure this money; that hearing of the previous death of his brother he changed the deed. The evidence, however, that the deed was deliberately made to the plaintiff, then under two years of age, we think greatly preponderated.
The court gave some and refused other declarations of law, but as the defense was equitable the legal questions can be considered without setting out in detail these instructions. The court gave one declaration of law to the effect that, if the defendant at the time intended to make the deed to his brother Jesse Hall, the finding should be for defendant; and refused one asked by defendant to the effect that the evidence failed to show such a delivery of the deed to or for the benefit of plaintiff as was necessary in order to vest the title in him. The court also gave a declaration that, if the deed was not made to plaintiff as an advancement, he could not recover. The verdict and judgment were for plaintiff and defendant appealed.
I. It is evident from the finding upon the declarations of law given and refused, that the court found these facts first,...
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