Mason v. Mason

• Decision Date: 05 March 1921
• Docket Number: No. 21843.,21843.
• Citation: Mason v. Mason, 231 S.W. 971 (Mo. 1921)
• Parties: MASON v. MASON
• Court: Missouri Supreme Court

231 S.W. 971

MASON v.MASON

No. 21843.

Supreme Court of Missouri, Division No. 1.

March 5, 1921.

Motion to Transfer to Court in Banc Denied June 6, 1921.

Appeal from Circuit Court; Livingston County; Arch B. Davis, Judge.

Suit by John T. Mason against Charlotte A. Mason, J. R. Mason, and others.From a judgment for defendants, plaintiff appeals.Affirmed.

Sutton & Huston, of Troy, and Frank: Sheetz, of Chillicothe, for appellant.

Collet & Son, of Salisbury, for respondents.

BROWN, C.

Suit instituted in Chariton circuit courtDecember 31, 1917, at Salisbury.The petition is in two counts, and states that the plaintiff and defendantJames R. Mason are the only children and heirs at law of one Peter Mason, who died in said county April 28, 1913, seized in fee of the land in controversy, described as the south half of the northwest quarter of section 24, township 23, range 17 in said county, the title to which then and thereby vested in them by descent as tenants in common; that soon after the death of their father there was filed in the office of the recorder of deeds of said county a warranty deed purporting to convey the said 18 acres of land to the defendantCharlotte A. Mason, the wife of J. R. Mason, to have and hold during her life with remainder in fee to three of her children, Artie May Carter, James J. Mason, and Ada S. Spratt; that said deed was signed and acknowledged December 9, 1910, but was never delivered to the grantees or either of them during the life of the grantor.

The prayer for relief asks for cancellation of the undelivered deed, for a determination of the title as between all the parties, including Rush Mason, who is alleged to make some unknown claim, and for possession, which is alleged to have been held by the grantee Charlotte continuously since the death of Peter Mason.

The substantive facts are that at the date of his death Peter Mason had owned and been in possession of a farm of 160 acres, consisting of the northwest quarter of said section 24, on which his children were born and raised.His residence, which is described as "the new house," with its messuages, was situated on the south half, upon a road running along the south side of the farm.It was something over three miles from the city of Salisbury.His wife had been dead for a number of years before the narrative of the transaction complained of begins, and he had leased his farm to different tenants, reserving a room in which he lived and kept his belongings, and when there boarded with his tenants.He sometimes stayed at the home of the defendants in Salisbury, where he had been continuously during about six months preceding his death.

On the same date and at the same time and place of the writing and acknowledgment of this deed' the grantor made a will.Both instruments were written by Mr. Fred Lamb of Salisbury, an attorney at law employed by him for the purpose.The will appointed Judge Lambexecutor and devised to the plaintiff and his daughter Cora Ells the north half of his farm to be held by them as follows: The undivided two-thirds to John T. Mason and the undivided one-third to Cora.He bequeathed $20 to his son James and the remainder of his personalty, which the testimony shows to have amounted to about $500, to his grandson Rush.

The testimony shows that he was dissatisfied with his son James for the reason that he did not think he had treated his wife as well as he should.

The delivery of the deed to Charlotte is the only question in issue.The evidence is simple, its force and effect depending principally upon the competency of witnesses, and can be better treated in the body of the opinion.

1.The sole object of this suit is the judicial cancellation of the deed from Peter Mason to the defendantCharlotte A. Mason on the ground that its execution was never completed by delivery.After the death of the grantor it was in the possession of the grantee, fully executed and acknowledged, and upon its face entitled to record, and was by her immediately filed for record in the proper office and recorded.Under these circumstances it is prima facie valid and operative, and the burden is upon any one denying its full execution to establish that denial by proof.Pitts v. Sheriff, 108 Mo. 110, loc. cit. 115, 18 S. W. 1071;McFarland v. Brown, 193 S. W. 800, loc. cit. 806;Scott v. Scott, 95 Mo. 300, 8 S. W. 161;Crutcher v. Stewart, 204 S. W. 18, loc. cit. 20;Tyler v. Hall, 106 Mo. 313, 17 S. W. 319, 27 Am. St. Rep. 337;1 Devlin on Deeds(3d Ed.) § 294.This presumption is so strong that only strong evidence can overturn it.Devlin on Deeds, supra.

"The law presumes much more in favor of a delivery in cases of voluntary settlements in favor of a wife, child, or near relative than it does in ordinary cases of bargain and sale between strangers.Hamilton v. Armstrong, 120 Mo. 597;Crowder v. Searcy, 103 Mo. 97."Rumsey v. Otis, 133 Mo. loc. cit. 95, 34 S. W. 553.

In that casethis court quoted with evident approval from Cannon v, Cannon, 26 N. J. Eq. 316, as follows:

"To make delivery of a deed, it is not necessary it should actually be handed over to the grantee, or to another person for him.It may be effected by words without acts, or * * * by both acts and words.Indeed, it may be made though the deed remains in the custody of the grantor."

The curious may find many cases cited in those to which we have already referred sustaining and elaborating their doctrine and holding that "the delivery itself is only intended to evidence the purpose of the grantor to give effect to the instrument."Acting upon this judicial suggestion, we will, before proceeding to notice the testimony of witnesses introduced by plaintiff to sustain the burden assumed by his pleading, refer to the circumstances of the transaction for such suggestions as they contain of the intention of the grantor to perfect this deed at the time of the writing.

Judge Lamb, a lawyer of prominence, had aided the grantor with such legal advice as was required by the situation, and we not only may, but must, presume that, both together, they knew the law applicable to the business in which they were engaged.Judge Lamb was present at the signing of the deed, still acting, we will presume, in the capacity of legal advisor, and also in the further official capacity of notary public to perform the acts necessary to give publicity to the deed whenever such publicity should be desired by the grantee.The writing, signing, and sealing of the certificate was a public and official act, done by a public officer in the presence of witnesses who were especially called to aid in furnishing the evidence which might at some time become necessary to prove its execution.

The grantor, the chief actor in the ceremony of publicity, was sick and evidently thinking and acting in contemplation of his own dissolution.He had in mind the disposition of his entire estate to the minutest item.He also had in mind the protection of his daughter-in-law, the mother of his four grandchildren, suggested by what he considered the unjust treatment of her husband, the father of the same grandchildren.He had only the two immediate descendants, this plaintiff and the husband of the grantee, who has died during the progress of this litigation.The plaintiff lived in Chicago, had not often visited his father, and, as he tells and us in his testimony, while he was present at his bedside when he died, he felt such interest in the disposition of his property that he made special inquiry of this grantee as to its disposition at the time of the mortuary services.

At the meeting to which we have referred this deed, by which the half of the farm on which was situated the home was given to his daughter-in-law for life with remainder to three of her children, was executed.At the same time a will was executed giving the other half of the farm to this plaintiff and his daughter and the whole amount of personal property which might be and was left at his death to the remaining grandchild.Neither the husband and father of the grantees in the deed nor the grandson who was left out of it is here complaining.The disposition was evidently equitable, the deed and will were interdependent, and it was necessary that the deed should be delivered in the lifetime of the grantor to make the general plan effective.If only the will should be operative at the time of his death, the disposition which the grantor intended would entirely fail, and be replaced by the disposition sought in this case, which would make this plaintiff the highly favored beneficiary.The law presumes that the testator knew this and that he was also well advised is not questioned.

This deed was not recorded, and we are asked to consider this fact as controlling evidence that it was not delivered.In considering this question the court must necessarily place itself in the position of this old man, who was, as the evidence shows, lying in bed in the room at the time of its execution without expectation of final recovery.He wanted peace, and his daughter-in-law, who evidently returned his affection and confidence, not only desired to assist him, but wanted peace herself.Nothing is more natural than that in the interest of peace and quiet and comfort a promise should have been requested and made that this deed would not be placed upon the public records until the will should take effect, so that both might come to the knowledge of this plaintiff in connection with each other.This court has no right to stigmatize such an arrangement if it was made.It was the right of the parties and the one thing about which we have to inquire is whether this deed was actually delivered.

2.To rebut the presumption of delivery arising from the possession, we are referred to the testimony of the plaintiff in his own behalf, to the effect that after the burial of...