Harvey v. Long

• Decision Date: 02 July 1914
• Citation: 168 S.W. 708,260 Mo. 374
• Parties: HUBERT M. HARVEY, Appellant, v. JAMES LONG
• Court: Missouri Supreme Court

168 S.W. 708

260 Mo. 374

HUBERT M. HARVEY, Appellant, v. JAMES LONG

Supreme Court of Missouri

July 2, 1914

Appeal fro Saline Circuit Court. -- Hon. Samuel Davis, Judge.

Affirmed.

Hubert M. Harvey pro se; R. P. Spencer and Morton Jourdan for appellant.

(1) Plaintiff's request for written findings of fact and conclusions of law having been made at the close of the evidence and before judgment was improperly refused. R. S 1899, sec. 695; R. S. 1909, sec. 1971; German-Am. Ins Co. v. Trimble, 86 Mo.App. 546; Bailey v Emerson, 87 Mo.App. 220; Fahy v. Grocery Co., 57 Mo.App. 73. (2) The deed from plaintiff's father, Hubert M. Harvey, Sr., to defendant's grantor was never delivered. Huey v. Huey, 65 Mo. 689; Turner v. Carpenter, 83 Mo. 333; Tyler v. Hall, 106 Mo. 313; Mudd v. Dillon, 166 Mo. 110; McNear v. Williams, 166 Mo. 358; Maddox v. Gray, 75 Ga. 452; Hayes v. Boylan, 177 Ill. 409; Walls v. Ritter, 180 Ill. 616; Cook v. Brown, 34 N.H. 460; Fisher v. Hall, 41 N.Y. 416; Steffian v. Bank, 67 Tex. 513; Garner v. Risinger, 37 Tex. Civ. App. 378; Lang v. Smith, 37 W.Va. 725; Note to Brown v. Westerfield, 53 Am. St. 550. (3) The deed from plaintiff's father to defendant's grantor was of no effect because not delivered during the life of the grantor. Givens v. Ott, 222 Mo. 395; Dohman v. Schliel, 179 Mo. 593; Miller v. Physick, 24 Ark. 244; Fitzgerald v. Goff, 96 Ind. 28; Old v. Doty, 61 Iowa 22; Taft v. Taft, 59 Mich. 785; Van Aueringer v. Morton, 4 Whart. 382. (4) When a deed, though acknowledged, is in the possession of the grantor there is a presumption of non-delivery. Miller v. Eshleman, 43 Leg. Int. (Pa.) 447; Burton v. Boyd, 7 Kan. 17; Hatch v. Hoskins, 17 Me. 391; Patterson v. Snell, 67 Me. 559; Powers v. Russell, 13 Pick. (Mass.) 69; Parrot v. Avery, 159 Mass. 594; Alexander v. De Kernel, 81 Ky. 345. The burden of proving delivery was on respondent, and appellant is not bound to prove non-delivery by evidence of equal dignity as the fact of acknowledgment. Tyler v. Hall, 106 Mo. 313; Burke v. Pence, 206 Mo. 339; Devony v. Koyne, 54 Mich. 118; Shattuck v. Rogers, 44 Kan. 266. (5) The testimony as to admissions of plaintiff's father is of little weight and cannot establish or destroy plaintiff's title. Johnson v. Quarlers, 46 Mo. 427; Kinney v. Murray, 170 Mo. 674; Williams v. Keef, 145 S.W. 425.

Reynolds & James and Duggins & Duggins for respondent.

(1) It is immaterial that the trial court failed to make any written finding of the facts, as requested by the appellant. This is an equity case; the whole record is before this court. It fully appears therefrom that the appellant, the respondent and the court treated it as an equity suit. The last paragraph of appellant's brief uses this language: "And as this is an equity case and all the evidence is in the record." This court, in commenting upon the case of Blount v. Spratt, 113 Mo. 53, uses this language: "We then held and now hold, that, in equity cases, it is not only the privilege, but the duty of this court to examine the evidence and draw our own conclusions of fact as well as of law." Miller v. McCaleb, 208 Mo. 575; Shaffer v. Dotie, 191 Mo. 387; Fitzpatrick v. Weber, 168 Mo. 572; Patterson v. Patterson, 200 Mo. 340. (2) The deed from appellant's ancestor, Hubert M. Harvey, deceased, to Mary B. Harvey, the appellant's mother, was sufficient to convey the equitable title to the real estate involved, to the said Mary B. Harvey, and upon the death of the said Hubert M. Harvey, the legal title to said land, immediately followed the equitable title, and likewise vested in said Mary B. Harvey. Christ v. Kuhner, 172 Mo. 118; Stark v. Kirchgraver, 186 Mo. 642. (3) The deed of said Mary B. Harvey to the respondent, James Long, conveyed to, and vested in him the full legal title to the land involved in this suit. (4) The question of delivery of the deed is generally one of intention of the parties and may be either actual or constructive. Burke v. Adams, 80 Mo. 504; Sneathen v. Sneathen, 104 Mo. 201; Crowder v. Searcy, 103 Mo. 97; Rumsey v. Otis, 133 Mo. 85; Hamilton v. Armstrong, 120 Mo. 597; Tobin v. Bass, 85 Mo. 654; Coulson v. Coulson, 180 Mo. 715; Standeford v. Standeford, 97 Mo. 231; Rodgers v. Carrey, 47 Mo. 235. A formal delivery is not essential, nor are expressed words necessary. 13 Cyc. 561; 5 Am. & Eng. Ency. Law (1 Ed.), 441. A manual delivery of a deed is not necessary; it being sufficient if it be apparent either from the words or acts of the grantor, that it was his intention to treat the deed as his, and to make a delivery of the same. Authorities above cited: Coulson v. Coulson, 180 Mo. 709. (5) Placing the deed with other papers of the grantor, after delivery to the grantee, coupled with the fact that it could not be found until after the death of the grantor, when it was discovered among his other papers, does not affect the prior delivery. Rumsey v. Otis, 133 Mo. 85; Allen v. Degroodt, 105 Mo. 442; Redd v. Smith, 125 Cal. 491. (6) The delivery may be inferred from a variety of circumstances. It may be inferred from the grantor's acts or declaration made at the time or subsequently thereto; from attendant or subsequent events. 2 Jones on Real Property, sec. 1220. The delivery may also be presumed from the fact that a deed, properly executed and acknowledged is placed upon record. R. S. 1899, secs. 932, 935, 3123; Burke v. Pence, 206 Mo. 339. The deed in question, in the case at bar, was duly signed, sealed, acknowledged and certified and recorded in the proper county, where the land was situated and thereby imported a delivery as of the date of the deed. Bunnell v. Bunnell, 64 S.W. 424. (7) Again, a delivery of said deed may be inferred from the fact that the grantee dealt with the property as her own, had control of the same, rented it out, collected the rent, mortgaged and sold the same. Land Co. v. Zeitler, 182 Mo. 282. (8) The delivery of said deed is presumed when made in pursuance to a former arrangement or contract, as it is presumed to have the grantee's consent, without a formal delivery and acceptance. 2 Jones on Real Property, sec. 1280; 13 Cyc. 730; Allen v. De Groodt, 105 Mo. 442; Everett v. Whitney, 55 Iowa 146; Jones v. Swazze, 42 N. J. L. 279. (9) Again, a delivery is more readily presumed in transaction between husband and wife, on account of the relationship existing between the parties. In the case of Rumsey v. Otis, 133 Mo. 95, this court uses this language: "The fact that this deed was afterwards found in the possession of Merrill Otis (the husband), considering the relationship of husband and wife, did not rebut the presumption of delivery to her." (10) Delivery is also presumed from the possession of the deed. In the case at bar, the said Mary B. Harvey, the respondent's grantor, had possession of the deed, and full and complete possession of the land, for over ten years. 13 Cyc. 734; Land Co. v. Zeitler, 182 Mo. 282; Allen v. DeGroodt, 105 Mo. 442. (11) In this great business world we are compelled to rely to a great extent upon presumption. As was said in Gass v. Evans, 244 Mo. 343: "This because: The controlling maxims are: All things are presumed to be legitimately done, until it is proved to the contrary; all things are presumed to be done solemnly. Chlanda v. Transit Co., 213 Mo. 261; 2 Coke, Litt. 6 B. What ought to be done is easily presumed. Those maxims evidence a rule of convenient public policy universally applied and without which great distress would spring in the affairs of men. They abide until facts proven to the contrary make them take flight. They apply with peculiar force to official acts. Hartwell v. Park, 240 Mo. 537." Maien v. Brock, 222 Mo. 84. (12) Considering the facts in the record, and the law bearing thereon, as stated, the respondent, Long, has not only made a prima-facie case of the delivery of the deed, in question, thereby procuring title from Hubert M. Harvey, the appellant's father; but has made a case from which there is no escape, for the appellant. All of the presumption arising from the law and from the facts as shown by the record in this case constitute such evidence as can only be overthrown by clear, countervailing evidence to the contrary. 2 Jones on Real Property, 1290; Burke v. Adams, 80 Mo. 512; Burke v. Pence, 206 Mo. 337; Elliott v. Shepard, 179 Mo. 392; Barrett v. Davis, 104 Mo. 549; Webb v. Webb, 87 Mo. 540; Riecke v. Westerhoff, 10 Mo.App. 358; Morrison v. McKee, 11 Mo.App. 594.

BROWN, C. Blair, C., concurs. Lamm, C. J., and Brown, J., concur. Walker and Faris, JJ., concur in the result. Woodson and Bond, JJ., dissent. Graves, J., dissents in an opinion filed.

OPINION

In Banc

BROWN C.

Suit begun in Saline County Circuit Court August 12, 1908, to determine the title to a farm of one hundred seventy-odd acres of land in that county. The plaintiff is the son and sole heir of Hubert M. Harvey, who died at his residence in Chicago, Illinois, February 26, 1895, intestate. He was about twenty-two years old when this suit was instituted. Both parties claim under the elder Harvey; the plaintiff as heir and the defendant as grantee in a deed from Mary B. Harvey, the widow of the deceased and mother of the plaintiff. She claimed title by a deed from her husband dated August 12, 1893. The delivery of this deed is the principal issue in the case. The petition was a formal one framed upon section 650, Revised Statutes 1899.

The answer is very long. In addition to the general denial, it pleads, in substance: (1) That the defendant is in an innocent purchaser for value from Mrs. Harvey, having paid $ 10,875 for the land, and there being no reason to suspect any weakness in her title as shown of record, and believing it to be good. (2) That out of the purchase money he paid liens resulting...