Miller v. Lullman

• Citation: 81 Mo. 311
• Parties: MILLER et al., Appellants, v. LULLMAN, Administrator, et al.
• Decision Date: 30 April 1884
• Court: United States State Supreme Court of Missouri

81 Mo. 311

MILLER et al., Appellants,

v.LULLMAN, Administrator, et al.

Supreme Court of Missouri.

April Term, 1884.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Overall & Judson for appellants.

The deed from Mrs. Miller and Mead was duly executed, and conveyed the title, both legal and equitable, to the premises in controversy. Lincoln v. Rowe, 51 Mo. 574; Siemers v. Kleeburg, 56 Mo. 197. The deed from Mrs. Miller and Mead to Kerr was duly acknowledged. The certificate of acknowledgment is not affected by the “relinquishment of dower” contained in it. Chauvin v. Wagner, 18 Mo. 531; DeLassus v. Poston, 19 Mo. 425. The deed from Mrs. Miller and Mead was delivered to Kerr. Gould v. Day, 94 U. S. 112; Jackson v. Cleaveland, 15 Mich. 101; Somers v. Pumphrey, 24 Ind. 240; 3 Washburn Real Prop., (4 Ed.) p. 285; Martindale on Conveyancing, p. 174; Kane v. McCown, 55 Mo. 198; Devorse v. Snider, 60 Mo. 240; Huey v. Huey, 65 Mo. 695. The deed from Kerr to Miller was duly executed, acknowledged and delivered. Ward v. Lewis, 4 Pick. 520; 3 Washburn Real Prop., (4 Ed.) p. 294; Martindale on Conveyancing, p. 174. The possession by Miller, the grantee, of the deeds was absolute, not in escrow. 3 Washburn Real Prop., (3 Ed,) pp. 267, 241. The legal effect of the deeds thus executed, acknowledged and delivered, was to vest the title to the lands in Geo. C. Miller, and at whose decease intestate said title was cast upon the heirs. The quit-claim deed was as operative to convey the title as any other. 3 Washburn Real Prop., (4 Ed) p. 357; Kulev. Kavanaugh, 103 Mass. 380; Martindale on Convey., § 59; Tiedeman on Real Prop., p. 598; Pugh v. Chesseldine, 11 Ohio 109; Chapman v. Sims, 53 Miss. 169. Cited approvingly in Fox v. Hall, 74 Mo. 317. The non-recording of the deeds was, inter partes, wholly immaterial. Maupin v. Emmons, 47 Mo. 306; 3 Washburn Real Prop., (4 Ed.) 316; Martindale on Conveyancing, p. 228; Harrington v. Foltner, 58 Mo. 473. Nor could recital of consideration be contradicted to impeach the title conveyed by the deeds. Poe v. Domic, 48 Mo. 442; Martin v. Jones, 59 Mo. 181. Nor is it material as to title conveyed, that the deeds were executed on same occasion in order of succession of title. The “construction together” “as one transaction” of the three deeds, is fatal to the claim of Mrs. Miller. 15 Sim. 76; 6 DeG. M. & G. 43; 11 Abb. (N. S.) 150. The title having been thus re-vested in Miller by the deeds, duly executed and delivered, the oral declarations of Miller were inadmissible to contradict the legal effect of the deeds, and to establish an alleged intended execution “of a marriage settlement with power of revocation.” There was no “antenuptial promise.” 29 Ark. 407; 5 Johns. Ch. 12. The testimony was insufficient to establish the alleged “intent.” The conveyances cannot be assailed in the appellate courts on the ground of fraud, duress or undue influence exerted upon Mrs. Miller, no such defense having been made in the circuit court, and the facts sustaining no such defense. St. Louis, etc., v. Bagnell, 76 Mo. 554; 2 Lead. Cases, p. 1215; Handy v. Van Harlington, 7 Ohio St. 208; McMahon v. Ryan, 8 Harris (Pa.) 329; Hollis v. Francois, 5 Tex. 195. The petition was properly framed, and presented a case for equitable relief. 3 Pomeroy Eq. Juris., § 1398, and cases cited.

Henry Hitchcock for respondent.

The conveyance by Miller and wife and her trustee to Kerr, never took effect by delivery. No deed can take effect without delivery, and there is no delivery if the deed remains within the control or subject to the authority of the grantor, or if it be in the hands of a third person as his mere agent, and subject to his directions. Huey v. Huey, 65 Mo. 689, 695; Cook v. Brown, 34 N. H. 464; Younge v. Guilbeau, 3 Wall. 636; Duer v. James, 42 Md. 492; Com. B'k v. Reckless, 1 Halst. Ch. (N. J.) 430; Prustman v. Barker, 30 Wis. 651; Jones v. Bush, 4 Harrington 7; Ward v. Ward, 2 Hay. (N. C,) 226; Clayton v. Liverman, 4 Dev. & Bat. (L. R.) 239; Sutwell v. Hubbard, 20 Wend. 44; Maynard v. Maynard, 10 Mass. 456; Burnett v. Burnett, 40 Mich. 361.

HENRY, J.

Plaintiffs filed their petition in the circuit court of St. Louis, praying that the title to certain real estate therein described, be adjudged to have been vested in Geo. C. Miller by certain conveyances therein mentioned, and now in plaintiffs, as his heirs at law, subject to administration and the widow's right of dower. The facts alleged upon which that decree is asked are, that on the 26th of February, 1879, Geo. C. Miller and his wife, the defendant, Kate C. Miller, by deed duly executed, acknowledged and delivered, conveyed said real estate to A. W. Mead, in trust, for the sole and separate use of said Kate C. Miller. That on the same day Mead and Miller and wife executed a quit-claim deed of the same to Robt P. Kerr, who on the same day executed a quit-claim deed, conveying said property to Geo. C. Miller. The deed to Mead was recorded February 27th, 1879, while neither of the other deeds was ever recorded, but were found by defendant, Mrs. Miller, among her husband's papers after his death which occurred in Louisville, Kentucky, in June, 1879. That she refused to surrender the deeds, claiming the property as hers under the deed to Mead. The defendant, Lullman, filed an answer consisting of a general denial, and Kate C. Miller filed her separate answer, admitting the execution of the several deeds, but alleging that the deed to Kerr was never delivered to him, and that George C. Miller, with the view of retaining the power to revoke the grant to Mead in trust for her, requested her and said Mead to join with him in the conveyance of said property to Kerr, and advised Kerr to execute a conveyance to Geo. C. Miller of the said property. That he never executed the power of revocation, etc.

On the trial in the circuit court the three deeds were introduced in evidence. It was admitted that the deed to Kerr, and his to Miller, were in possession of the latter, at his death, neither having been recorded, and that Kate C. Miller was in possession of them when this suit was commenced. The testimony of the defense, was that of Mrs. Benedict, sister of Mrs. Miller, and Mead and Kerr. Mrs. Benedict testified that she was intimate with Miller, who told her before his marriage with her sister, that he intended to convey the property to his wife, in order to protect her. Shortly before their marriage, he told the witness he intended to give his wife the property as a bridal present. Mead testified that he was a lawyer. Identified the deeds, the first two having been prepared by him, and that of Kerr to Miller, having been written by Miller. That Miller was engaged with Mr. Jewett in some land litigation, and that his property was advertised for sale under a fee bill, or execution for about $600, and he came from Louisville to St. Louis with his wife, and in a conversation with witness, said he was tired of these land cases, and wanted to give his property to his wife, but said he wouldn't trust her, and asked witness how he could hold a control over her, and witness advised him to convey the property to some one in trust for her, and then he and wife and the trustee convey it to Bob Kerr, and he reconvey it to Miller. He followed this advice, and the deeds were all signed and acknowledged at Miller's room, at the Lindell Hotel. Kerr never took possession of the deed to him, but signed and acknowledged his deed to Miller, leaving the deed to himself on the table. Witness took all the deeds to the recorder's office and had the one to himself recorded, returning the others to Geo. C. Miller. Kerr testified that Miller requested him to meet him at McCabe's office. Said he was going to give his property to his wife, and that she would give witness a quit-claim deed to the property which witness was to convey to Miller by quit-claim deed. Miller said he wanted to hold the deeds and not record them, so that in case of difficulty with his wife, he could record them.

The circuit court entered a decree in accordance with the prayer of the petition, but on appeal to the court of appeals the judgment was reversed and plaintiffs have appealed to this court. There was not sufficient evidence of such a marriage contract between Miller and his wife as would interfere with his absolute dominion over his property, subject only to her dower right. Therefore, if the deed to Kerr was not delivered...