Appeal from Howard Circuit Court. — Hon. Allen W. Walker, Judge.
AFFIRMED.
John W. Booth, Fred H. Kasmann, Abbott, Fauntleroy, Cullen & Edwards and Edwin C. Luedde for appellants.
(1) Pleading that the deed was never delivered is good, direct and sufficient pleading. It is pleading a fact and not a conclusion. In view of the direct allegation that there was no delivery of the deed, no inferences of delivery can arise from any other allegations in the petition. Stephens v. Fitzpatrick, 218 Mo. 724, 118 S.W. 56; Davis v. Foundry Co., 23 S.W. (2d) 231. (2) A felon, that is, a convict in the penitentiary, is civilly dead and cannot take title to real property. R.S. 1919, sec. 2291; Ward v. Morten, 294 Mo. 408, 242 S.W. 966; Murphy v. Barton, 275 Mo. 282, 205 S.W. 49; McLaughlin v. McLaughlin, 228 Mo. 635, 129 S.W. 21; Williams v. Shackelford, 97 Mo. 322. (3) Where a contract is made between two parties for the benefit of a third party the rights of the third party under such contract are subject to the contract as made by the immediate parties thereto. A third person who benefits by a contract made between two others is bound by the conditions of the contract and his rights are subject to any equities arising out of it between the immediate parties. Ellis v. Harrison, 104 Mo. 270, 16 S.W. 198; Davis v. Dunn, 121 Mo. App. 490; American Natl. Bank v. Klock, 58 Mo. App. 335; Lewellyn v. Butler, 186 Mo. App. 525, 172 S.W. 413; Citizens Bank v. Douglas, 178 Mo. App. 664; 6 R.C.L. 886, sec. 273; Note in 71 Am. St. 202. The contract between plaintiff and Tempel for the sale of the land by plaintiffs to Tempel, including, as it did, under the allegations of paragraph six of plaintiffs' petition, a provision that plaintiffs were to borrow $2,500 from defendant building and loan association and secure the same by deed of trust to said association, was a contract for the benefit of the Greene County Building and Loan Association; that is to say, a contract between two persons for the benefit of a third person. St. Louis v. Von Phul, 133 Mo. 561; Ellis v. Harrison, 104 Mo. 270. (4) A demurrer reaches only the facts alleged in the petition. No additional facts can be considered by the court. The petition alleges a contract of sale, and, neither by express allegation nor by reasonable inference, does it allege any agency by any one to deliver the deed of trust to defendant. State ex rel. Gentry v. Monarch Tr. & S. Co., 20 S.W. (2d) 60; Bennett v. Lohmann, 292 Mo. 493, 238 S.W. 792; Pacific Lime & Gypsum Co. v. Bridge & I. Co., 286 Mo. 112, 226 S.W. 853; Beattie Mfg. Co. v. Gerardi, 166 Mo. 142; Baldridge v. Ryan, 260 S.W. 536; Hubbard v. Slavens, 218 Mo. 622; Graves v. Graves, 255 Mo. 468. (5) Delivery of deed, whether by agent or other custodian, contrary to conditions or instructions, passes no title. 1 Mechem on Agency (2 Ed.) 587, sec. 815; 41 C.J. 428, 426, sec. 292; 18 C.J. 206, sec. 105; 19 R.C.L. 280, sec. 52; 8 R.C.L. 991, secs. 57, 59; Chipman v. Tucker, 38 Wis. 43, 20 Am. Rep. 1; Davis v. Bechstein, 69 N.Y. 440, 25 Am. Rep. 218; Grindle v. Grindle, 240 Ill. 143, 88 N.E. 473; Baker v. Best (Ky.), 107 S.W. 1192; Dunlevy v. Fenton, 80 Vt. 505, 68 Atl. 651, 130 Am. St. 1009; Bone v. Dwyer, 265 Pac. 292; Sharp v. Kilborn, 64 Ore. 371, 130 Pac. 735; Root v. Martin, 172 N.W. 502; Ware v. Smith, 62 Iowa, 159, 17 N.W. 459. (6) Presumption of delivery of deed from its being recorded is rebuttable and disappears in the face of facts to the contrary as alleged in the petition. 18 C.J. 207, sec. 110; 8 R.C.L. 1005, sec. 66; Keener v. Williams, 271 S.W. 489; Aude v. Aude, 28 S.W. (2d) 665. (7) There was no delivery alleged in plaintiff's petition. The transmission of the deed of trust was no delivery, because the deed of trust was part and parcel of a warranty deed, which, the petition alleges, was retained by plaintiffs, and all of which belonged together by virtue of the oral contract of sale, subject to which respondents' claim must be Point 3,
supra.
Hamlin, Hamlin & Hamlin for respondents.
(1) Plaintiffs must allege in their petition constitutive facts, which compose plaintiffs cause of action, not legal conclusions, for they are not issuable facts. Such conclusions are treated as no statements at all. Pier v. Heinrichoffen, 52 Mo. 333; Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 397; State ex rel. Home Savings Ins. v. Lee, 288 Mo. 298, 233 S.W. 25; Lappin v. Nichols, 263 Mo. 291; Vogeler v. Punch, 205 Mo. 577. (2) Plaintiffs do not charge that they did not authorize the deed of trust filed for record, but allege "the same was by some person or corporation, whose name is unknown to plaintiffs, or either of them, filed for record and the same is of record." This is no better than no allegation. (3) The allegation of the delivery of the deed of trust from plaintiffs to Tempel as charged in paragraphs 8 and 9 of the petition is contradictory. In paragraph 8 they charge said deed was delivered to Franklin State Bank; in paragraph 9 they charge it "was never delivered by said A.J. Koewing to any person or corporation." These two allegations cannot stand together. Rutledge v. Railway Co., 110 Mo. 318. (4) Tempel was plaintiffs' agent and had authority to negotiate this loan, or apparent authority. Federal Reserve Bank v. Millspaugh, 282 S.W. 709. The act of plaintiffs in delivering the deed of trust to Tempel was sufficient to justify the Association in believing that Tempel was authorized to speak and act for them, he having apparent authority to act for them. If Tempel had apparent authority to act for the plaintiffs the Association had a right to rely thereon, and was not negligent in so doing. Universal Paper Products Co. v. Funsten Co., 285 S.W. 520. If Tempel was plaintiffs' agent in negotiating the loan he was authorized to do any act necessary in negotiating said loan, and this is true even though he simply had apparent authority so to do. Records v. Powell, 278 S.W. 1078; 41 C.J. 428. Agency may be established from the conduct of the principal and agent. McCloud v. Telegraph Co., 170 Mo. App. 624; Johnson v. Hurley, 115 Mo. 513. (5) The demurrer was the proper pleading. Stone v. Cook, 179 Mo. 539.
COOLEY C.
Suit to cancel a deed of trust on the ground that it was never delivered, therefore never had validity. The circuit court sustained defendants' demurrer to plaintiffs' amended petition. Plaintiffs declined to plead further and the court entered judgment dismissing the case, from which plaintiffs appealed.
Appellate jurisdiction is in this court, because the action involves title to real estate. See Loewenstein v. Queen Ins. Co., 227 Mo. 100, 127 et seq., 127 S.W. 72; Conrey v. Pratt, 248 Mo. 576, 154 S.W. 749; Linneman, et al. v. Henry (Mo.), 291 S.W. 109.
The amended petition, demurrer to which was sustained, states that at the times therein mentioned plaintiffs were husband and wife, residing at the village of Treloar in Warren County, Missouri, where plaintiff A.J. Koewing was cashier of a bank; that defendant Greene County Building & Loan Association was a corporation with its principal office and place of business at Springfield, Missouri; that said A.J. Koewing owned certain real estate, to-wit, Lot 3 in Block 3 of McGavock's Addition to the Town of Franklin, in Howard County, Missouri; that one Floyd Tempel, at and prior to the time of the transaction involved, was a resident of the said town of Franklin and cashier of the Franklin State Bank at that town, and "a man of good repute and standing, in business in that community." The petition then states:
"Par. 6. That on or about the 10th day of March, 1926, A.J. Koewing offered to sell his real estate to said Tempel for the sum of $3,542. Thereupon said Tempel proposed to said A.J. Koewing that said Koewing should borrow the sum of $2,500 from said association and secure payment thereof by a deed of trust conveying said Lot 3, with the buildings and improvements thereon, and proposed to said Koewing that if he would so incumber his said real estate and would sell the same to him, said Tempel, subject to such incumbrance, he would buy the interest and estate of said A.J. Koewing in said Lot 3, subject to said incumbrance, and pay him therefor the sum of $3,542; and thereupon, said A.J. Koewing agreed to and did verbally sell his interest and estate in said Lot 3 according to the terms thus proposed for the sale and purchase thereof.
"Par. 7. That, thereupon, said Tempel called upon said Koewing to exhibit to him (Tempel) his, the said Koewing's, deed under which he held title to said Lot 3, for his use in and about the drawing of deeds suitable and proper to the accomplishment of the said agreement last aforesaid, and in due time thereafter said Koewing duly complied with that request, and in due time thereafter said Tempel tendered to said Koewing, on the 17th day of May, 1926, a prepared form of deed for use as proper for securing for said A.J. Koewing a loan of $2,500 from said association, and also a prepared form of deed for use as proper for conveyance to said Tempel of said Lot 3 subject to conveyance in trust for the benefit of said association, all in accordance with said proposed contracts and agreements; and thereafter, said A.J. Koewing and his wife, Louise Koewing, as such, signed and acknowledged said forms of deeds before John F. Eichmeyer, notary public in and for the County of Warren of the State of Missouri, on the 18th day of May, 1926.
"Par. 8. That said forms of deeds being so signed and acknowledged, said A.J. Koewing thereupon at once transmitted that one thereof so prepared for securing a loan to be made by said association on said Lot 3 to said Franklin State Bank, to be held by it until said loan should be made to said Koewing, and retained...
