Hein v. Payne, 36803.

• Citation: 144 S.W.2d 122
• Decision Date: 31 October 1940
• Docket Number: No. 36803.,36803.
• Court: United States State Supreme Court of Missouri
• Parties: WALTER J. HEIN and VINA B. HEIN, Appellants, v. AMANDA HEIN PAYNE.

144 S.W.2d 122 WALTER J. HEIN and VINA B. HEIN, Appellants,
v.
AMANDA HEIN PAYNE. No. 36803. Supreme Court of Missouri. Division One, October 31, 1940.

[144 S.W.2d 123]

Appeal from Grundy Circuit Court. — Hon. V.C. Rose, Judge.

AFFIRMED.

Chas. A. Miller for appellants.

(1) There was no delivery of the deed because dominion of grantors over it, did not intentionally pass. The deed was left in a place assessible to defendant, but appellants did not intend that it be delivered. There was no intent at the time on the part of the grantors (appellants) to divest themselves of title. McNair v. Williamson, 166 Mo. 367; Terry v. Glover, 235 Mo. 544; Tyler v. Hall, 106 Mo. 313; Coulson v. Coulson, 180 Mo. 709. (2) There was no delivery of deed in issue because evidence shows it was to become effective upon contingencies, of Amanda Hein dying first, it then to be worked out by appellants and Daniel Hein and if Daniel Hein died first, the deed was to be destroyed. Bunn v. Stuart, 183 Mo. 375; Terry v. Glover, 235 Mo. 544; Coles v. Belford, 232 S.W. 728; Jarboe v. Hey, 122 Mo. 341. (3) The recording of deed is not conclusive as to delivery; and any presumption is overcome by the acts of defendant in waiting to record and in making statements that she had a life dower; and in saying that Walter Hein got the land after her death; and in entering into contract as to taxes in 1932. The deed was not voluntarily put of record by the plaintiffs herein, but in direct violation of their intention and direction. Bunn v. Stuart, 183 Mo. 375.

Ruth C. Woodruff and George E. Woodruff for respondent.

(1) Respondent has the right to insist that the judgment is for the right party on the record. A demurrer ore tenus was interposed. Respondent's additional abstract shows that the petition and answer on which this case was tried are not before the court. The original petition and answer are not, in view of the amendment, a part of the record proper. Whether or not the petition on which the case was tried stated a cause of action or whether or not the answer, undenied by reply, stated a defense thereto, cannot be determined. The appeal should be dismissed where pleadings on which the case was tried are not abstracted. Williams v. Campbell, 123 S.W. (2d) 87; Eads v. Volmer, 38 Mo. 357; Rozier v. Nations, 178 S.W. 740; Sedgwick Co. v. Newton County, 144 Mo. 301. (2) Abandoned assignments of error will not be considered. Dickson v. Maddox, 48 S.W. (2d) 873, 330 Mo. 51. (3) Where the evidence shows that the deed was a deed of gift, no valuable consideration therefor is necessary. Clark v. Skinner, 70 S.W. (2d) 1094, 334 Mo. 1190. (4) Where the deed is given into the possession of the grantee with the intention that the deed have an effect it is effective in passing title according to its terms even though the parties may be mistaken as to the effect the deed has. Mason v. Mason, 231 S.W. 971; Jones v. Jefferson, 66 S.W. (2d) 555, 334 Mo. 606; Keener v. Williams, 271 S.W. 489, 307 Mo. 682; Miles v. Robertson, 258 Mo. 717, 167 S.W. 1000; Aude v. Aude, 28 S.W. (2d) 665; Clark v. Skinner, 70 S.W. (2d) 1094, 334 Mo. 1190; Hale v. Weinstein, 102 S.W. (2d) 650; Lanphere v. Affeld, 99 S.W. (2d) 36. (5) Where the evidence is conflicting, the court on appeal will defer to the findings of the chancellor. Rhoads v. Rhoads, 119 S.W. (2d) 247; Hale v. Weinstein, 102 S.W. (2d) 650; Lanphere v. Affeld, 99 S.W. (2d) 36. (6) The declarations, admissions, or course of conduct of the grantee indicating his understanding of the legal effect of a deed cannot change or affect its validity or legal effect. Gorton v. Rice, 153 Mo. 676, 55 S.W. 241; Voigt v. Blanto Co., 46 S.W. (2d) 927; Wishart v. Gerhart, 105 Mo. App. 112, 78 S.W. 1094. (7) The cancellation of a deed is an exertion of the most extraordinary power of...