Marshall v. Hartzfelt
| Decision Date | 02 February 1903 |
| Citation | 71 S.W. 1061,98 Mo.App. 178 |
| Parties | LOUISA MARSHALL, Appellant, v. GODFREY HARTZFELT et al., Respondents |
| Court | Kansas Court of Appeals |
Appeal from Vernon Circuit Court.--Hon. H. C. Timmonds, Judge.
AFFIRMED.
Judgment affirmed.
J. R Moss and J. B. Journey for appellant.
(1) The mere lodgment of a deed, properly executed and acknowledged by the grantor, in a place or to a third party when there is a condition thereto attached by the grantor that the grantee should live with said third party and work for him until he is of age, does not constitute a delivery of the deed, and the taking and recording of such a deed by the third party after the death of the grantor, is inefficient to pass title. Huey v. Huey, 65 Mo. 689; Tiedeman on Real Property sec. 812. (2) The dominion of the grantor in a deed to constitute delivery, must have passed from him with the intent that it should pass to the grantee if the latter would accept. Tyler v. Hall, 106 Mo. 313; Tiedeman on Real Property, sec. 812. In order to pass title, deed must be delivered to the grantee during the lifetime of grantor. Sneathen v. Sneathen, 104 Mo. 201. (3) The law does not presume assent upon the part of an infant when the devise is not beneficial. This devise was upon eighty acres of raw and unimproved land in Vernon county, Missouri, in 1872 which is shown by the evidence. There was a charge upon this land of $ 667.51. Sneathen v. Sneathen, 104 Mo. 201. (4) In order to pass title by deed there must not only be an acknowledgment and delivery upon the part of the grantor, but there must be an acceptance upon the part of the grantee, either by words or acts, or both word and acts. Tiedeman on Real Property, sec. 812.
Scott & Bowker for respondents.
(1) An alienation of devised property by the testator during his life renders the will void. Cozzens v. Jamison, 12 Mo.App. 452; White v. Pollock, 117 Mo. 467. (2) A delivery of a deed to a person for a minor conveys title. Hall v. Hall, 107 Mo. 101. (3) A deed is presumed to be delivered on the day the same is acknowledged. Fontaine v. Saving Institution, 57 Mo. 552.
This is a suit in equity to subject certain real estate to a lien for the payment of a bequest in a will. The evidence shows that on June 17, 1872, one Henry Zilliox executed his last will in which, amongst others, is the following provision, to-wit:
It further appears that on the same day the said testator executed said will, he also executed a general warranty deed whereby he conveyed to said Louis Henry Zilliox the real estate devised to him by the said will. The said devisee and grantee was the son of the testator and grantor, and was then about fifteen years old. On the day of the execution of the deed the grantor delivered it to his oldest son John Zilliox, saying to him at the time: Accordingly, the deed was taken and kept in the possession of the older brother and was not delivered to the younger until after he was of age, when it was placed upon record. The latter took possession of the land and some years thereafter conveyed it to his co-defendant, Hartzfelt.
The testator did not die until thirty-five days after the execution of said instruments.
If the deed was effectual and operated as a present transfer of the grantor's title in the land to the grantee therein named, then this rendered the devise and bequest in the will void; for the rule is that an alienation of devised property by the testator during his life renders his will inoperative as to such devise. Cozzens v. Jamison, 12 Mo.App. 452, and authorities there cited. The deed was properly executed and if there was a sufficient delivery of it, it had the effect to pass the title to the grantee during the lifetime of the grantor, so that at the time of the death of the latter he had no such interest in the land as was subject to the devise.
The rule is well established...
To continue reading
Request your trial