Huey v. Huey

• Decision Date: 31 October 1877
• Citation: 65 Mo. 689
• Parties: HUEY, PLAINTIFF IN ERROR v. HUEY.
• Court: Missouri Supreme Court

65 Mo. 689

HUEY, PLAINTIFF IN ERROR

v.HUEY.

Supreme Court of Missouri.

October Term, 1877.

Error to Cape Girardeau Court of Common Pleas.--HON. H. G. WILSON, Judge

Lewis Brown, for plaintiff in error, cited Hatch v. Hatch, 9 Mass. 307; Foster v. Mansfield, 3 Met. 412; O'Kelly v. O'Kelly, 8 Met. 439; 1 Shep. 57; 2 Black. Com. 307; 4 Viner 27, § 52; 2 Wash. Real Prop. 602 to 618.

Houck & Ranney, for defendants in error, cited Games v. Stiles, 14 Pet. 322; Goodrich v. Walker, 1 Johns. Cas. 250; 4 Comyn's Dig., p. 158; Shed v. Shed, 3 N. H. 432.

HOUGH, J.

The only question presented by the record in this case, is whether one Enoch Huey, deceased, ever delivered to his son, Grigg M. Huey, the defendant herein, a deed for certain land in which the plaintiff, as widow of said Enoch Huey, now claims a homestead. The cause was tried by a jury, who found under the instructions of the court, that the deed was delivered to the defendant. The facts are as follows: On the 7th day of April, 1867, Enoch Huey signed, sealed and acknowledged a conveyance of certain real estate for and in consideration of the sum of one dollar, and the natural love and affection he bore to his son, Grigg M. Huey, the grantee therein and the defendant in this suit, who at that time resided with his father. The deed was executed by Enoch Huey alone, his wife not joining, and after its execution was placed by said Huey in a chest in his dwelling, in which all the papers about the house were kept, and to which the defendant had access. Enoch Huey died in January, 1871. About one month after his death the defendant took the deed and put it on record. The plaintiff, who was a witness, stated that she did not know whether her husband had ever given the deed up to his son; that he had it made for him and that Grigg always knew where it was, and if he had wanted it in his possession, he could have taken it. She further stated that she had heard his father tell him, “he did not want it recorded before his death; he could have it recorded after his death.”

Jas. McGarvey testified as follows: I knew Enoch Huey in his life time. I was called to see him professionally a short time before he died. He talked about a deed. He told his son Grigg to get it out of the chest, which he did. The old man told me to look at it and see if it was correct. Grigg was not in the house at first; his father called for him, told him to go into the back room and get that paper. He brought it and gave it to one of us, I don't remember which. I read it. I think he told Grigg to go out of the room. I told him I thought it was a good instrument. Enoch Huey told me that he did not wish to deliver the deed to his son until after his death, that he did not know what might happen, as he wanted his wife well cared for. The deed was put back in the chest.

Cross-examination. He was sick, but was so he could walk to the fire place. Grigg put the deed back in the chest at his father's order. The old man said to me if Grigg deviated in his treatment of his mother, he might make a change. I heard him say that he intended Grigg to have the deed after his death.

E. D. Engleman testified as follows: I wrote this deed. Enoch Huey said he wanted it in such shape that he would be owner of it as long as he lived. He wanted to secure the farm to Grigg, his son. I told him he could make a deed and hold it in his possession, and not have it recorded until such time as his son would not treat him as the others had. He said he had given land to his other sons, and had kept this land for Grigg. He took the deed with him. The deed, which was an ordinary conveyance, was read, and this was all the evidence in the cause.

The court gave numerous instructions, enunciating abstract propositions of law, about which there could be but little controversy, and only one which was really applicable to the facts of the case. That instruction is as follows: “The court instructs the jury that if they believe from the evidence that Enoch Huey left the deed where Grigg M. Huey, the defendant, could get it at the proper time, and if they further find that said Enoch Huey intended that the defendant should have the title to the land, and should take the deed in actual possession at the time specified, that this act and this intention on the part of Enoch Huey, was a constructive delivery, and gave the defendant the right to take possession of the deed, and have the title to the land at the time specified. Actual possession by a grantee, is not always necessary to constitute a delivery by the grantor.” The latter clause of this instruction is undoubtedly correct, but the previous portion does not, in our judgment, meet all the requirements of the law in relation to the delivery of deeds.

It is quite clear from the testimony, that Enoch Huey executed the conveyance in question, with the purpose of thereby conferring upon his son, at some time, the title to the land described in said deed; and it is equally clear that this was communicated by him to the son, and that the time fixed upon in the mind of the father for so vesting the title, was at or after his own death. Now, it is evident that in order to effectuate this purpose, something more was necessary than the mere execution of the deed, and the lodgment thereof in a place to which the son had access during his life, and from which he could, without hindrance, transfer it to his own possession after his death. Delivery is essential to make a deed effective, and this delivery must be in the lifetime of the grantor. Jackson v. Leek, 12 Wend. 107; Jackson v. Phipps, 12 Johns. 421. That is, there must be an actual or constructive delivery during the life of the grantor, or a delivery after his death which takes effect by relation at some period during his life. A delivery after the death of the grantor, must of course be made by some person holding the deed as a trustee, or having the same in possession as an escrow. Wheelright v. Wheelright, 2 Mass. 447. The Butler and Baker's case, (3 Rep. 350) may be appropriately cited as illustrating the effect of such a delivery. It was there said: “That to some intent, the second delivery hath relation to the first delivery, and to some not, and yet, in truth, the second delivery hath all its force by the first delivery; and the second is but an execution and consummation of the first; and therefore, in case of necessity, et ut res magis valeat quam pereat, it shall have relation by fiction to be his deed ab initio, by force of the first delivery; and therefore, if at the time of the first delivery, the lessor be a femme sole, and before...