Huff v. Wagner

• Citation: 287 S.W. 1038,315 Mo. 917
• Decision Date: 11 October 1926
• Docket Number: 25528
• Parties: Ella Van Huff, Ella V. Dobbs and Carrie R. Clark and Mary O'Rielly, Executrix of Estate of Ella M. Stevenson, v. Alice Wagner, Appellant
• Court: United States State Supreme Court of Missouri

287 S.W. 1038

315 Mo. 917

Ella Van Huff, Ella V. Dobbs and Carrie R. Clark and Mary O'Rielly, Executrix of Estate of Ella M. Stevenson, v. Alice Wagner, Appellant

No. 25528

Supreme Court of Missouri

October 11, 1926

Motion for Rehearing Denied November 15, 1926.

Appeal from Jackson Circuit Court; Hon. Willard P. Hall Judge.

Affirmed.

Jackson C. Stanton and James I. Wagner for appellant.

(1) Defendant's request for an instruction in the nature of a demurrer to the evidence should have been sustained and the petition dismissed at the conclusion of plaintiff's testimony, because: (a) There was an entire failure of proof. The evidence must conform to the pleadings. Duncan v Gage, 250 S.W. 648; Hensler v. Stix, 113 Mo.App. 162; Ingwerson v. Ry. Co., 116 Mo.App. 139. (b) The burden of proof rests on plaintiffs. Williams v Modern Woodmen, 204 Mo.App. 135; Griffith v. Cas. Co., 253 S.W. 1043; Downs v. Horton, 287 Mo.App. 414. (c) Before a deed can be abrogated by equity the proof of non-delivery must be cogent and clear. Burkey v. Burkey, 175 S.W. 625. (2) The court erred in its finding of fact and conclusion of law on the issue raised by the pleadings and by rendering judgment on facts neither pleaded, admitted, nor proven. Even a superficial reading of the "Memorandum" written by the learned judge of the trial court and filed in this cause will support this assignment of error for the reason that the very first paragraph of said "memorandum" contains this language, "and afterwards placed the deed in an envelope, also enclosing in the same envelope a written memorandum directing the witness Biggs, after her death, to deliver the deed to Mrs. Wagner", a statement which can nowhere be found in this record; and for the further reason that this controversy is concerning real estate and not personal property. (3) Evidence concerning the nature and kind of business transacted for deceased by witness Biggs should have been admitted, though there is enough in the record to show that these services were menial and mechanical. Under the facts in this case the depositary became a trustee of the grantee, and not an agent of the grantor. In any event where the deposit of the deed is made unconditionally, the depositary becomes not an agent, but a trustee of an express trust. Tillman v. Carthage, 247 S.W. 997; Meredith v. Meredith, 287 Mo. 250. (4) Evidence of the surrounding facts and circumstances is admissible as bearing upon a contested question as to delivery. 18 C. J. 431, sec. 524; Schooler v. Schooler, 258 Mo. 83; Cook v. Newby, 213 Mo. 491. (5) The court was in error in holding that the deed to the property in controversy "was never legally delivered to defendant, or to anyone for her." Such a thought might be entertained were it not for the fact that there were two separate and distinct deliveries, if such a thing is possible in law.

John G. Paxton for respondents.

(1) There was no legal delivery of the deed to the defendant grantee, because said deed was never placed beyond the control or possession of grantor. The undisputed evidence is that there was given to Biggs, a postman, a sealed envelope the contents of which he did not know. He was told to keep this envelope safely, "Don't let anyone get that," and upon the death of Mrs. Stevenson to open the envelope and it would tell him what to do. Overlooking the fact that the deed did not tell him what to do, it cannot be questioned that Biggs would have been under a legal obligation to return the envelope to Mrs. Stevenson had she demanded it. He was the custodian for safe-keeping only as far as he knew from any directions he had from her. To constitute delivery the deed must be placed beyond the control of the grantor. Huey v. Huey. 65 Mo. 289; Mudd v. Dillon, 166 Mo. 110; Peters v. Berkemeier, 184 Mo. 393; Bunn v. Stuart, 183 Mo. 375; Terry v. Glover, 235 Mo. 544; Coles v. Belford, 289 Mo. 97; Harrison v. Edmonston, 248 S.W. 588. (2) To constitute a valid delivery the grantor must have intended to part with the title to the property at the time of the delivery of the deed to Biggs. If to take effect after her death, then it was a will improperly executed and did not convey title. The property conveyed by the deed was the home of the deceased at that time. She resided therein. Possession was not given to the grantee, nor was it intended to be given until after the death of Mrs. Stevenson. So she stated to the witness, Miss Compton. Coles v. Belford, 289 Mo. 97; Harrison v. Edmonston, 248 S.W. 588. (3) There was no legal delivery of the deed. The envelope when opened contained no directions as to what Biggs should do with the deed. He had only the deed itself. His directions were to do what the contents of the envelope told him. Delivery is an essential part necessary to the making of a valid deed. Biggs found the deed in his possession after the death of Mrs. Stevenson without directions. There is no necessary inference that he should deliver the deed to the grantee. Obviously he did not know what to do. He consulted Buchanan, the abstractor, and followed his advice. To make the delivery to a stranger effectual, the intention with which the delivery is made must be expressed at the time. Tiedeman on Real Property, sec. 578; Osborne v. Eslinger, 155 Ind. 351; Fitzpatrick v. Brigman, 30 So. 500; Mudd v. Dillon, 166 Mo. 110.

Lindsay, C. Seddon, C., concurs.

OPINION

LINDSAY

This is a suit to cancel a deed executed to defendant by Ella M. Stevenson as being a could upon the title to real estate claimed to be owned by the three plaintiff's first above named, as residuary legatees under the will of said Ella M. Stevenson, deceased. The deed was executed on July 5, 1923. Mrs. Stevenson's age was eighty-two years, and the property in question was her residence, and it was so occupied by her until her death, which occurred November 3, 1923. She left no direct heirs. On August 27, 1922, she made a will, in which, after legacies to different Christian Science churches, and to certain relatives, she devised the remainder of her real estate to her nieces, the plaintiffs, Ella Van Huff and Ella V. Dobbs. Thereafter, on May 22, 1923, by a codicil, she provided that said remainder should go to the nieces just named, and to Carrie R. Clark, also a niece. On June 5, 1923, at her request, the deed in question, a warranty deed for the expressed consideration of one dollar, was drawn by Jas. F. Buchanan, an abstractor of titles of Independence, but no grantee was named therein at that time. On July 5, 1923, Mr. Buchanan was called by Mrs. Stevenson to take her acknowledgment to said deed, and refused to do so until the name of the grantee should be expressed therein. Thereupon, she wrote in the name of defendant as grantee, and signed and acknowledged the deed. She placed the deed in an envelope, which bore the return address of Mr. Buchanan, and retained possession of the same. Later, Buchanan said, she asked him if he thought the disposition she had made of her property was all right, and he said it was, but he does not say that Mrs. Stevenson told him what she had done with the deed.

The plaintiff waived any question of the competency of defendant as a witness. She testified that she was a Christian Science practitioner, and in that capacity has visited and treated the deceased from about April, 1923, and that on October 7, 1923, at the request of Mrs. Stevenson, she went to the latter's home, and that after some conversation and a prayer, Mrs. Stevenson got out an envelope and took therefrom the deed in question and said to defendant: "I deeded you this property," and threw the envelope over on defendant's lap. The defendant further testified: "I turned it over and threw it back into her lap. I said: 'It is not mine. I have not earned this property. You keep this little home. You are going to get well.' She spoke of this plaintiff, Ella Van Huff, and said: 'I don't want her to have it. I want it to go where it will do the most good.' 'Well,' I said 'I haven't earned it.' 'But,' she says, 'I want you to have it.'" She said that after she threw it back into Mrs. Stevenson's lap, the latter put the deed in the envelope and put the envelope back into the drawer. Defendant testified that the next time she heard about the deed was on the afternoon of October 9th, when she again visited Mrs. Stevenson at the latter's request; that upon that occasion a Mrs. Holland, a neighbor, was present; that Mrs. Stevenson asked if defendant had told Mrs. Holland what she (Mrs. Stevenson) had done; that defendant said she had not told Mrs. Holland; that thereupon Mrs. Stevenson said: "Mrs. Holland, I have deeded this place to Mrs. Wagner, and have given the deed to Mr. Biggs to keep until I pass away. I want you, Mrs. Holland, to see that she gets it when I pass away, and that my wishes are carried out." Defendant, in her testimony as to what was then said, adds the statement: "I said I would accept it." Mrs. Holland's testimony contains no reference to a statement by defendant that she accepted the deed. On the cross-examination of defendant there is the following:

"Q. After you told Mrs. Stevenson you would accept the deed what did she do with it? A. Took it and put it in the envelope and put the envelope in the bureau drawer where she had it.

"Q. Then later she told you and Mrs. Holland? A. Yes.

"Q. And that she had given the deed to Mr. Biggs to keep for her until she had passed away? A. And for Mrs. Holland to see that I had the deed.

"Q. This all took place when? A. On the 9th."

Mr Biggs, above mentioned, was called as a witness by the plaintiffs. He was the mail carrier on the route upon which Mrs. Stevenson lived. He had been such for a number of years, and they were on friendly terms. He...