Miles v. Robertson

• Decision Date: 02 June 1914
• Citation: 167 S.W. 1000,258 Mo. 717
• Parties: LULU L. MILES et al., Appellants, v. MARTHA E. ROBERTSON et al
• Court: Missouri Supreme Court

167 S.W. 1000

258 Mo. 717

LULU L. MILES et al., Appellants, v. MARTHA E. ROBERTSON et al

Supreme Court of Missouri, First Division

June 2, 1914

Appeal from Phelps Circuit Court.-- Hon. L. B. Woodside, Judge.

Affirmed.

Jones Bros., C. H. Shubert and Watson & Holmes for appellants.

(1)The court erred in holding that the deed of A. C. Robertson to Martha E. Robertson was effective to convey the title of the land to her and admitting said deed in evidence over objection of plaintiff.Seibel v. Higham,216 Mo 131;Huey v. Huey,65 Mo. 689;Givens v Otte,222 Mo. 395;9 Am. & Eng. Ency.Law, pp. 153-4;Miller v. Lullman,81 Mo. 311;Tyler v Hall,106 Mo. 313;McCune v. Goodwillie,204 Mo. 338;Williams v. Latham,113 Mo. 174;Cook v. Newby,213 Mo. 489;Mudd v. Dillon,166 Mo. 110;Terry v. Glover,235 Mo. 552;Chambers v. Chambers,227 Mo. 262.(2)The court erred in finding that there was a delivery of the deed from A. C. Robertson to Martha E. Robertson.Seibel v. Higham,216 Mo. 131; Bouvier's Law Dict., "Delivery;" Tiedeman on Real Property (3 Ed.), 577;3 Washburn on Real Property, p. 254;Sneathen v. Sneathen,104 Mo. 201;1 Devlin on Real Estate(3 Ed.), sec. 279, p. 453;Wilson v. Wilson,158 Ill. 567.(3) Under the evidence of Martha E. Robertson, herself, there was no delivery of the deed to her by A. C. Robertson.There could be no delivery in this case unless the delivery had been perfected in the life-time of deceased, A. C. Robertson.No one was authorized to deliver it after his death.Terry v. Glover, 235 Mo. 552.

Bland & Murphy for respondents.

(1) The controlling question in the case is, whether or not A. C. Robertson delivered the deed from himself to the respondent, and whether the delivery, if made, was an unconditional one; that is, did he reserve the right to recall the deed, or did he part with all dominion over it.The undisputed evidence is that he not only executed the deed, and made a manual delivery of it to the respondent with instructions to keep it, "that it is your deed," but that he communicated his purpose to make it to her before doing so, and called Yowell and Lorts as witnesses to the deed, and told them of his reasons for making it, viz.: to secure a home for respondent after he should pass away.The deed is a general warranty deed containing no reservations or restrictions.By permission of the court, appellants, over objections of respondents, were allowed to show by oral evidence that Robertson, while he made an unconditional manual delivery of the deed to respondent, intended that the deed should not take effect immediately, and not at all if he should survive the respondent.He might have reserved a life estate in the land if he had so expressed his purpose in the deed.O'Day v. Meadows,194 Mo. 588;Buxton v. Kroeger,219 Mo. 256;Williams v. Latham,113 Mo. 165;Stanford v. Stanford,97 Mo. 231;Wilson v. Carsico,14 Ind. 533;Gish v. Brown,171 Pa. St. 479;Burry v. Frank,98 Cal. 446;Frank v. Frank,90 Iowa 318;Stough v. Wilder,119 N.Y. 530.Such a reservation would indicate an intention on the part of the grantor to pass the remainder interest immediately.But nothing of the kind is indicated in the deed, and the oral evidence which respondent unsuccessfully moved to have struck out was inadmissible for the purpose of grafting upon the deed conditions which contradicted its terms.Or to limit or qualify the effect of its unconditional delivery to respondent, for there can be no such thing as a conditional delivery of a deed to the grantee.Wadsworth v. Warren,12 Wall. 307;Rogers v. Ramey,137 Mo. 598;Aldrig v. Hopgood,39 Vt. 621;Railroad v. Howard,13 How. 334;Stromson v. Campbell,114 Ill. 19;Baker v. Baker,159 Ill. 394.But the learned circuit judge discarded this oral evidence, and correctly found that the deed was delivered to the respondent unconditionally by the grantee, and this courtwe apprehend will not consider this oral evidence of any validity when it comes to a decision of the case.(2) Though there may have been a verbal understanding that the deed was not to take effect until after the death of A. C. Robertson, the grantor, yet as there was an actual delivery by him to the grantee the title immediately passed to her.Coal Co. v. Gulf Coast Co.,51 So. 570;Worrall v. Munn,5 N.Y. 229, 55 Am. Dec. 330;Berry v. Anderson,22 Ind. 39;Weber v. Christen,121 Ill. 91, 2 Am. St. 71;Tollmer v. Rohser,112 P. 544;People v. Bostwick,32 N.Y. 445;Foley v. Cowgill,5 Blackf. 18, 32 Am. Dec. 49;Hicks v. Goode,12 Leigh, 479, 37 Am. Dec. 677;Trust Co. v. Whitem,169 Mo.App. 5;Clark v. Criswell,112 Md. 339;Chambers v. Chambers, 227 Mo. 162.

BROWN, C. Blair, C., concurs.Bond, J., concurs in the result.

OPINION

BROWN, C. --

This action was begun in the circuit court for Phelps countyJuly 2, 1910, to secure the determination by the court of the interests of the respective parties in about 170 acres of land in that county.There was also a separate count for partition of the same land.The plaintiffs are Lulu E. Miles and Ida M. Collins, who state that they are the owners of an undivided 140-840 of the land; and the defendants are Martha E. Robertson, alleged to be the owner of an undivided 649-840; John Hale 20-840; Maude Roster of 10-840; and Walter Beeler, Grace Beeler and Homer Beeler of 7-840 each.

The respective titles of the parties are stated as follows:

"That on the 15th day of January, A.D. 1909, Albert C. Robertson departed this life intestate at Phelps county, Missouri, seized and possessed of the fee simple title to the above-described real property; that the said Albert C. Robertson left surviving him no widow or children, and no father or mother, but leaving as his sole and only heirs, his sister, the defendant, Martha E. Robertson; his sister, Margaret Love, and his sister, Mary Blain; and the plaintiffs, Lulu L. Miles, formerly Robertson, and Ida M. Collins, formerly Robertson, only children and heirs of W. E. Robertson, a brother of Albert C. Robertson; and W. R. Hale, John Hale, A. B. Hale, Samuel Hale, Caroline Hale, who intermarried with one Parry, children of Sarah Hale; and Walter Yowell, Otto Roster and Maude Roster, grandchildren of Sarah Hale, composing the sole and only heirs at law of Sarah Hale, sister of the deceased Albert C. Robertson; and B. F. Wood, H. W. Wood and Dora Wood, children of Lucinda Wood; and Ubert Beeler, Walter Beeler, Emma Beeler, Grace Beeler, and Homer Beeler, grandchildren of Lucinda Wood, deceased, a sister of the said Albert C. Robertson, deceased, composing the sole and only heirs of the said Lucinda Wood.

"That the following named heirs of the said Albert C. Robertson have conveyed their interest in the above real estate to Martha E. Robertson, to-wit: Margaret Love, Mary A. Blain, W. R. Hale, A. B. Hale, Samuel Hale, Caroline Hale, B. F. Wood, H. W. Wood, Dora Wood, Walter E. Yowell, Otto Roster, Ubert Beeler, Elma Beeler and Crawford Beeler, whereby said defendant, Martha E. Robertson, has acquired the undivided 649-840 interest in said land."

The petition further states that the defendantMartha E. Robertson is in possession claiming the entire title.The three Beelers, defendants, were minors and non-residents of the State.They answered, through their guardians ad litem, disclaiming knowledge or information of the facts.Martha E. Robertson denied the allegations of the petition and set up that she was the owner of the entire title.The other two defendants did not answer, nor have they appealed.

The plaintiffs replied to the answer of Martha E. Robertson that she claimed absolute ownership under a "purported" deed from A. C. Robertson which was without consideration and had never been delivered.

On the trial Martha E. Robertson admitted that she claimed title to the land as grantee of A. C. Robertson who died January 15, 1909.The deed was introduced in evidence.It was dated June 17, 1899.It conveyed the land in question, with the usual covenants of an indefeasible title in fee and against incumbrances and was witnessed by W. E. Yowell, the same mentioned in the petition as an heir of A. C. Robertson, and by one S. M. Lorts.It was acknowledged before Robert C. Carpenter, notary public for Phelps county, and recorded January 23, 1909.

The real and only question is upon the delivery of the deed.The evidence, about which there was no dispute, was to the effect that Mr. Robertson was a bachelor who at the time of the execution of the deed was old and feeble and described himself as not having long to live.Miss Robertson was a spinster well advanced in years, although not as old as her brother, and had always lived with and kept house for him except during fourteen years when she was at work in Montana for monthly wages.Upon her return she again went to live with and keep house for her brother, investing about $ 1500 which she had acquired, in the improvements on this farm, which was their home.On the morning of the day the deed was made he told her that he would go into St. James and fix the deed for her.When he came back, which was before noon, he came through the house and presented her the deed saying, "Here is your deed."He further said, "take it and lay it away and let it lay there until the change comes, and if I have to go first you will have something to secure you a home, and if you die first I will make you secure.The land then still remains in me."He said, "I am old and am liable to go first, but the deed is yours."In answer to a question by plaintiff's counsel Miss Robertson said that she took his intention to be that if she died first he would still have the land.He told her to put the deed in her trunk.She put it in the till and he never saw where...