Meadows v. Brich

• Decision Date: 12 November 1980
• Docket Number: No. 11581.,11581.
• Citation: 606 S.W.2d 258
• Parties: Doris B. MEADOWS, Deloris Presley, Cameron Brich and Judy Brich, Plaintiffs-Respondents, v. Dwayne N. BRICH and Virginia R. Brich, Husband and Wife, and Emma Brich, a Widow, Defendants-Appellants.
• Court: Missouri Court of Appeals

606 S.W.2d 258

Doris B. MEADOWS, Deloris Presley, Cameron Brich and Judy Brich, Plaintiffs-Respondents, v. Dwayne N. BRICH and Virginia R. Brich, Husband and Wife, and Emma Brich, a Widow, Defendants-Appellants.

No. 11581.

Missouri Court of Appeals, Southern District, Division One.

September 16, 1980.

Motion for Rehearing or Transfer Denied October 6, 1980.

Application to Transfer Denied November 12, 1980.

William B. Miller, Philip C. Ehli, Kansas City, for defendants-appellants.

Dale L. Davis, Bussell, Hough & O'Neal, Springfield, Ralph Gilchrist, Bolivar, for plaintiffs-respondents.

FLANIGAN, Chief Judge.

The four plaintiffs sued their mother Emma Brich and their brother Dwayne Brich and Dwayne's wife Virginia. The petition alleged that the plaintiffs and defendant Dwayne were owners, as tenants in common, of an 80-acre farm in Polk County. The petition claimed that the tenancy in common arose by reason of a deed executed on November 1, 1969, in which the four plaintiffs and defendant Dwayne were grantees and their deceased father Paul Brich and defendant Emma Brich were grantors. The petition alleged delivery of the 1969 deed. The trial court, sitting without a jury, found that the deed had been delivered and awarded plaintiffs the requested relief, which included a declaration of title and partition by sale. Defendants appeal.

Although other issues¹ were before the trial court, the disposition of this appeal hinges upon the correctness of the trial court's finding that the deed had been delivered. In Shroyer v. Shroyer, 425 S.W.2d 214 (Mo.1968), the supreme court, citing many authorities, enunciated several of the principles which govern this appeal. They are set forth in the next four paragraphs.

Whether or not a deed has been delivered is a mixed question of law and fact. The element which controls the resolution of that question is the intention of the parties, especially the intention of the grantor. The vital inquiry is whether the grantor intended a complete transfer whether the grantor parted with dominion over the instrument with the intention of relinquishing all dominion over it and of making it presently operative as a conveyance of the title to the land.

It is not necessary, to effectuate delivery, that the deed actually be handed over to the grantee or to another person for the grantee. There may be a delivery notwithstanding the deed remains in the custody of the grantor. If a valid delivery takes place, it is not rendered ineffectual by the act of the grantee in giving the deed into the custody of the grantor for safekeeping. It is all a question of the intention of the parties, which may be manifested by words or acts or both.

If the deed, although acknowledged, is not recorded and is in the grantor's possession at the time of his death, those circumstances, unless explained, are deemed conclusive that the parties did not intend a complete transfer. If there is an unequivocal showing that the grantee was given possession of the deed, a presumption of delivery arises. Such a presumption, however, does not arise where the evidence shows that the grantor handed the deed to one of two grantees momentarily, for the purpose of reading it, and at the grantor's direction it is immediately taken back into grantor's possession, to be kept by him until his death.

There is a presumption of non-delivery if the evidence shows that the deed was in grantor's possession at the time of his death and was not then recorded. Such a showing places upon grantees the burden of going forward with the evidence, "more accurately, the burden of persuasion," to rebut the presumption of non-delivery.

Contrary to plaintiffs' view, the burden of proof was upon plaintiffs to prove delivery of the 1969 deed. Reasor v. Marshall, 359 Mo. 130, 221 S.W.2d 111, 11611, 12 (1949). A deed delivered to one of several grantees operates as a delivery to all of them, in the absence of a disclaimer. LaMehaute v. LeMehaute, 585 S.W.2d 276, 28010 (Mo.App.1979).

On this appeal the defendants present several points but each is bottomed upon their basic contention that the evidence is insufficient to support the trial court's finding that the 1969 deed was delivered. This court agrees with defendants.

On November 1, 1969, Paul Brich and his wife Emma owned the farm as tenants by the entireties. On that date they went to the office of attorney Richard Collins in Bolivar. Collins prepared a warranty deed in which the grantors were Paul and Emma and the grantees were their five children: plaintiffs Doris Meadows, Deloris Presley, Cameron Brich, Judy Brich, and defendant Dwayne Brich. The deed, in standard form, was signed by Paul and Emma, and attorney Collins, a notary public, took their acknowledgment. The deed did not reserve a life estate in the grantors. At the time of trial the deed had not been recorded.

Paul and Emma continued to live on the farm until Paul's death on June 11, 1975. All of the grantees lived elsewhere. During that time the farm was operated by Paul and Emma. They paid the taxes on it and kept all of the profits. None of the grantees, prior to Paul's death, exercised or attempted to exercise any control over the farm or its operation, although some of them did help with some of the farm work after Paul's death.

Plaintiffs made no attempt to show that the deed was delivered to plaintiff Doris Meadows. Indeed defendants introduced a letter, written in 1976, from Doris to her mother Emma, in which Doris said, "Can't understand why you don't sell the place to Dwayne and go into town where it is closer to stores and someone to talk to and see you are all right." Although Doris was present at the trial, she did not testify.

On the issue of whether the deed was delivered to plaintiff Deloris Presley, plaintiffs' evidence showed that "in the last part of 1969" Paul and Emma went to Deloris' home in Springfield. Also present was Deloris' husband, Norman Presley. Paul handed the deed to Deloris and said, "Deloris, I want to give you this here." Deloris said, "Is this legal" and Emma said, "Yes, Mr. Collins said to do it this way, show it to the parties and then take it back and put it in a steel box for safekeeping."

Deloris, a witness for herself and her co-plaintiffs, testified:

"Q. Now, when that deed was given to you, when you were showed it, you did not keep it?

A. No.

Q. You gave it right back to them?

A. Yes. He said he was going to keep it for us.

Q. And you never saw it again?

A. No."

Norman Presley, a witness for the plaintiffs, testified that Deloris "had to give the deed right back" to Paul.

Paul told Deloris that he did not want the deed recorded because he was afraid he might lose his old age pension. The deed was in the possession of the grantors when they left Deloris' house.

On the issue of whether the deed was delivered to plaintiff Cameron Brich, Cameron testified that in June 1971 he was at the farm visiting his parents. Cameron's wife Norma was with him. At Paul's suggestion Cameron and Norma went out "to that little place where grantors kept that box" and Cameron looked at the deed and so did...