Jones v. Jefferson

• Decision Date: 22 December 1933
• Citation: 66 S.W.2d 555,334 Mo. 606
• Parties: Samuel H. Jones and Hilda Adell Jones, his wife, Appellants, v. Pearl Jefferson et al
• Court: Missouri Supreme Court

66 S.W.2d 555

334 Mo. 606

Samuel H. Jones and Hilda Adell Jones, his wife, Appellants, v. Pearl Jefferson et al

Supreme Court of Missouri

December 22, 1933

Appeal from Circuit Court of City of St. Louis; Hon. H. A Rosskopf, Judge.

Affirmed.

Freeman L. Martin for appellants.

Delivery -- Sufficiency. -- "Anything which clearly manifests the intention of the grantor that his deed shall presently become operative and effectual, that he loses control over it, and that the grantee is to become possessed of the estate constitute a sufficient delivery. And it is obvious that this rule rests upon the intention of the grantor, as manifested by the circumstances surrounding the transaction." Foote v. Lichty, 120 P. 398; Tyler v. Hall, 106 Mo. 313; Kunkel v. Johnson, 109 N.E. 279; Central Trust Co. v. Stoddard, 88 P. 806; Terry v. Glover, 235 Mo. 544; Growney v. Lowe, 234 Mo. 689; Rausch v. Michel, 192 Mo. 293; Cook v Newby, 213 Mo. 471; Standiford v. Standiford, 97 Mo. 231; Miller v. Lullman, 81 Mo. 311. Deed. Delivery. -- "To make a deed effective there must be a delivery, actual or constructive, to the grantee, or to some person for his use, during the lifetime of the grantor." When complete. "The delivery of a deed is complete when the grantor has parted with his dominion over it, with the intent that it shall pass to the grantee, provided the latter assents." Standiford v. Standiford, 97 Mo. 231; Tobin v. Bass, 85 Mo. 654; Coulson v. Coulson, 180 Mo. 709. Conveyance -- Delivery. -- "Whether a deed purporting to convey a present interest in lands was in fact delivered is an inference to be drawn from the facts in judgment in each particular case, and is not to be worked out by fixed or arbitrary rules." Van Huff v. Wagner, 315 Mo. 922; Huey v. Huey, 65 Mo. 694; McCune v. Goodwillie, 204 Mo. 306; Peters v. Berkemeier, 184 Mo. 393; Bunn v. Stewart, 183 Mo. 375. Deed -- Acceptance -- Necessity. -- "Acceptance by the grantee is essential to delivery, and without it a deed does not take effect." McCune v. Goodwillie, supra; Schooler v. Schooler, 258 Mo. 83; Cowsert v. Same, 258 Mo. 96; Stump v. Marshall, 266 S.W. 476; Cooper v. Newell, 263 Mo. 190. Deed -- Effect of record or delivery for record. -- "The presumption of delivery arising from recording, however, is rebuttable, especially where the deed is recorded by the grantor or under his direction." McCune v. Goodwillie, supra. "The mere recording of a deed which the grantor thereafter retains in his possession does not, in the absence of other circumstances showing an intention by such act to deliver the instrument to the grantee, operate as a delivery to him (grantee)." Abrams v. Beale, 224 Ill. 496, 79 N.E. 671; Wilenou v. Handlon, 207 Ill. 104, 69 N.E. 892; Hawkes v. Pike, 105 Mass. 560; Culmore v. Genove, 24 S.W. 83; Newman v. Newman, 86 S.W. 635. Conveyance: delivery: intention. "What constitutes delivery of a deed is a question of intent, a mixed question of law and fact; and that intention may be got at by what was done before and at the time, and may be what happens afterwards is of value." Rothenbarger v. Rothenbarger, 111 Mo. 1; Allen v. De Groodt, 105 Mo. 442; Mendenhall v. Pearce, 323 Mo. 973; Sneathen v. Sneathen, 104 Mo. 201; Crowder v. Searcy, 103 Mo. 97; Standiford v. Standiford, 97 Mo. 231; Burke v. Adams, 80 Mo. 504; Huey v. Huey, 65 Mo. 689; Van Huff v. Wagner, 315 Mo. 923; Chambers v. Chambers, 227 Mo. 282; Huey v. Huey, 65 Mo. 694; Cook v. Brown, 34 N.H. 476; Van Huff v. Wagner, 315 Mo. 922; Sneathen v. Sneathen, 104 Mo. 209; Dallas v. McNutt, 297 Mo. 535; Stump v. Marshall, 266 S.W. 476; Coles et al. v. Belford, 289 Mo. 97; Snitzer v. Pokers, 23 S.W.2d 161; Keener v. Williams, 307 Mo. 708; Creamer v. Bivert, 214 Mo. 486; Houtz v. Hellman, 228 Mo. 671; Poston v. Balch, 69 Mo. 121; McNear v. Williamson, 166 Mo. 365; Hobbs v. Boatman, 195 Mo. 693; 13 C. J., sec. 442, p. 498; 21 C. J., sec. 176, p. 189; Bell v. Campbell, 123 Mo. 1; Holliway v. Holliway, 77 Mo. 392; Turley v. Edwards, 18 Mo.App. 676.

Greensfelder & Grand for Pearl Jefferson and A. W. Jefferson.

(1) Appellants are not entitled to the relief sought by them because of the fraudulent motives behind the original conveyance. He who seeks equity must come into court with clean hands. Creamer v. Bivert, 214 Mo. 473; Chambers v. Chambers, 227 Mo. 263; Price v. Morrison, 291 Mo. 249, 236 S.W. 297; Mason v. Perkins, 180 Mo. 702. (2) Delivery of a deed for recording, with the intent to convey property, constitutes legal delivery, even though the grantor retains possession of the deed after it is recorded. Chambers v. Chambers, 227 Mo. 263; Pearce v. Dansforth, 13 Mo. 360; Tobin v. Bass, 85 Mo. 654; Burke v. Adams, 80 Mo. 504; Standiford v. Standiford, 97 Mo. 231; McReynolds v. Grub, 150 Mo. 362; Deer v. King, 30 S.W.2d 980; Raney v. Home Ins. Co., 213 Mo.App. 1, 246 S.W. 57. (3) Appellants are not entitled to the relief sought by them because they do not offer to release respondents from their personal liability on the notes executed by them, thereby placing respondents in statu quo. One who seeks equity must do equity. McNatt v. Maxwell Inv. Co., 50 S.W.2d 1040; Johnson v. Crowley, 191 S.W. 690; 9 C. J., p. 1207, sec. 93, p. 1209, sec. 94.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

The plaintiffs, husband and wife, have appealed from a final judgment rendered for defendants after the trial court had sustained defendants' demurrer to the petition. The object of the suit is to obtain a decree setting aside a deed executed by plaintiffs conveying to defendant Pearl Jefferson, a daughter of the first named plaintiff, certain described real estate in the city of St. Louis. The other defendants have an interest in the land in question but are not materially interested in the result of this suit. The sole question for decision here is whether on the facts stated in the petition the plaintiffs are entitled to the relief prayed for. The trial court held that they are not, and we are asked to reverse the judgment.

It is necessary in determining this question to consider and take as true the allegations of fact contained in the petition, keeping in mind that plaintiffs now strenuously claim that the deed which they executed and now ask to be set aside was never delivered to or accepted by the defendant Pearl Jefferson. The real controversy here is between Samuel H. Jones, a plaintiff, and his daughter, Pearl Jefferson, a defendant, and we shall refer to them as the plaintiff and defendant respectively.

In substance the petition alleges: That on and prior to July 14, 1927, the plaintiff, Samuel H. Jones, was the owner and in possession of the land in question; that said plaintiff had recently, January 18, 1927, married his coplaintiff; that prior to such marriage he was a widower and "was keeping company with another woman;" that plaintiff, a negro, was pastor of a colored church in St. Louis and "the woman with whom he was keeping company was a member of his church; that the woman whom he married (another woman) was also a member of said church;" that after plaintiff's marriage to his coplaintiff "the other woman claimed that this plaintiff had promised to marry her, and had failed, neglected and refused to do so," and had made complaint to the church, which, on investigation, dismissed the plaintiff as pastor of the church; that all these proceedings took place in May and June, 1927, and thereafter in July, 1927, the said other woman, who claimed that this plaintiff, Samuel H. Jones, had promised to marry her, threatened to bring a suit for breach of promise against him. It was under these circumstances, as plaintiff alleges, that these plaintiffs agreed between themselves that said real estate owned by plaintiff "should be transferred to defendant, Pearl Jefferson, his daughter by a former marriage, for convenience, to be reconveyed to them upon request;" that plaintiff called his daughter, the defendant, who lived in Memphis, Tennessee, over the long distance telephone to come to St. Louis at once, "that he was having some trouble which he would explain when she arrived;" that defendant came forthwith to St. Louis and in the presence of plaintiffs, her father "explained to her (defendant) that a certain woman claimed that he had promised to marry her and had made complaint to the church, and that now she was threatening to file a suit for breach of promise against him; and that he wanted to convey the described real estate to her for convenience, and that she should reconvey it to him on request;" that the defendant's husband, also a defendant, should know nothing about this; that the daughter (defendant) then and there agreed to accommodate the plaintiff, whereupon "plaintiff and defendant went to an attorney's office and explained the aforesaid facts to him and requested said attorney to draw a deed of conveyance to said property, which was accordingly done; that plaintiff then and there executed said deed in the presence of said attorney; that the father handed said executed deed to said attorney and requested that he record the same and when recorded to return said deed to him, to which said daughter assented; that said attorney did have said deed recorded and when it was returned to him by the recorder said attorney kept said deed in his office for several months before the said plaintiff called for it, when it was delivered to him; that the father paid all the fees to drawing, acknowleding and recording said deed."

The petition then sets out a copy of the deed in question and it will suffice to say that it is an unconditional warranty deed in common form, dated July 14, 1927, whereby plaintiff Samuel H. Jones, and wife grant, bargain, sell and convey to Pearl Jefferson, defendant of...