Miller v. McCaleb

• Decision Date: 27 November 1907
• Citation: Miller v. McCaleb, 208 Mo. 562, 106 S.W. 655 (Mo. 1907)
• Parties: MILLER et al. v. McCALEB et al.
• Writing for the Court: Graves
• Court: Missouri Supreme Court

106 S.W. 655

208 Mo. 562

MILLER et al. v. McCALEB et al.

Supreme Court of Missouri, Division No. 1.

November 27, 1907.

1. APPEAL — EQUITY CAUSES — FINDINGS OF FACT AND LAW — OMISSION — PREJUDICE.

Equity causes being triable de novo in an appeal, and the Supreme Court being required to examine the evidence and draw its own conclusions of fact and law, a party to such an appeal is not prejudiced by the trial court's refusal to make separate findings of fact and conclusions of law under Rev. St. 1899, § 695 [Ann. St. 1906, p. 704].

2. DEEDS — DELIVERY — ACCEPTANCE BY GRANTEE.

While it is essential to the validity of a deed that it should be accepted by the grantee, delivery will be presumed, in the absence of fraud, artifice, or imposition.

3. SAME — RECORD.

Record of a deed will not of itself constitute delivery, in the absence of acceptance by the grantee; but such acceptance after record satisfies the requirement.

4. SAME — EVIDENCE.

Upon the transfer of certain property in controversy a deed was executed conveying the property to a wife and the lawful heirs of her husband. This deed was duly executed and recorded, but on the same day another deed to the same land was executed before the same officer, conveying the property to husband and wife jointly. The wife testified that, after the first deed was executed, it was determined to change their estate, and that the second deed was made for that purpose, and that she always claimed under it and had possession thereof, though she had no knowledge of the record of the first deed until after her husband's death. Held, that such facts were insufficient to show an acceptance by the wife of the first deed, and that it was therefore ineffective for want of delivery.

Appeal from Circuit Court, Dade County; L. W. Shafer, Judge.

Action by Kate Miller and others against Ara E. McCaleb and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Edwin Frieze and Sherwood & Young, for appellants. C. F. Newman, Mason Talbutt, and Edgar P. Mann, for respondents.

GRAVES, J.

Action in partition by petition in the usual form, with prayer for the partition of 60 acres of land in Dade county, and for account of rents and profits alleged to have been had and received by one of the defendants. The plaintiffs Kate Miller and Lydia A. Forrest, and the defendants S. A. McCaleb and C. A. McCaleb are children of Ethelbert A. McCaleb, who died in the year 1901, and the only answering defendant is Ara E. McCaleb, the second wife and widow of the said Ethelbert A. McCaleb. The four children of the said Ethelbert, made parties to this action, are children by his first wife. The deceased, Ethelbert A. McCaleb, and the defendant Ara E. McCaleb were married in 1871. At the institution and trial of this suit there were two children of the second marriage alive, but they were not made parties. They testify as witnesses, however. The answer of Ara E. McCaleb, the only answering defendant, was a general denial.

Plaintiffs base their claim on the following deed: "Know all men by these presents, that William F. Dry and Emily J. Dry, of the county of Dade in the state of Missouri, hath this day for and in consideration of the sum of six hundred and thirty dollars, to the said William F. Dry and his wife Emily J. Dry in hand paid by Ara E. McCaleb (wife of Ethelbert A. McCaleb) and the lawful heirs of the said Ethelbert A. McCaleb, of the county of Lawrence in the state of Missouri, granted, bargained and sold, and by these presents do grant, bargain, sell and convey unto the said Ara E. McCaleb and the lawful heirs of the said Ethelbert A. McCaleb, the following tracts or parcels of land situated in the county of Dade, in the state of Missouri, that is to say: The north half of the east half of the southwest quarter and the north half of the southeast quarter of the southwest quarter of section 26, township 30, range 28; also the east half of the north half of the northeast quarter of the southeast quarter of section 33, township 30, range 27 — containing in all seventy acres more or less. To have and to hold, the premises hereby conveyed, with all the rights, privileges and appurtenances thereto belonging or in any wise appertaining unto the said parties of the second part, their heirs and assigns forever, and the said William F. Dry and Emily J. Dry, his wife, hereby covenanting to and with the parties of the second part, their heirs and assigns, for themselves, their heirs, executors and administrators, to warrant and defend the title of the premises hereby conveyed against the claim of any person whatsoever. In testimony whereof, we have hereunto subscribed our name and affixed our seals this 22nd day of April, in the year of our Lord, one thousand, eight hundred and seventy-two. William F. Dry, [Seal.] Emily J. Dry, [Seal.]" This deed was acknowledged before Wm. Van Horn, justice of the peace, on the date thereof. It was filed for record April 24, 1872, and duly recorded in Book 16, at page 519 thereof, of the deed records of said county. On the back of the original of this deed appears this indorsement: "Warranty deed from William F. Dry and Emily J. Dry to Ara E. McCaleb. State of Missouri, County of Dade — ss.: This deed was filed for record in my office on the 24th day of April, 1872, at the hour of ____ o'clock _____ M, and duly recorded in Book 16, page 519. No. Due. Paid fee $1.00. Arch M. Long." The plaintiffs introduced the record of this deed, and the answering defendant produced the original. There is no difference between the record of the deed and the original, nor of the certificates of acknowledgment and other endorsements thereon, except on the original appears a canceled United States revenue stamp.

Defendant placed in evidence another deed, identical in form except as hereinafter noted, of the same date, acknowledged on the same date by the same justice of the peace, having the same grantors, and conveying the same land. The only difference is in the names of the grantees. In this last-mentioned deed the grantees are "Ara E. McCaleb and Ethelbert A. McCaleb, her husband," instead of "Ara E. McCaleb and the lawful heirs of the said Ethelbert A. McCaleb," as in the deed first fully set out hereinabove. This deed has indorsed on the back thereof, the following: "Warranty deed from William F. Dry and Emily J. Dry to Ara E. McCaleb and Ethelbert A. McCaleb." This deed has no revenue stamp and had not been recorded. Defendant also offered in evidence a mortgage dated April 22, 1872, to secure two notes of $215, each. In this mortgage the grantee is William F. Dry, and he is also the payee in the two notes described therein, and the land conveyed is the same involved in this suit. The notes are signed by Ethelbert A. McCaleb, and he signs the mortgage with his wife, but the first part of the mortgage reads: "This indenture, made and entered into this twenty-second day of April, A. D. 1872, by and between Ara E. McCaleb, wife of Ethelbert A. McCaleb, in the county of Lawrence and state of Missouri, of the first part, and William F. Dry of the county of Dade, state of Missouri, of the second part, witnesseth." This mortgage was likewise acknowledged before Van Horn, justice of the peace.

Such is the documentary evidence in the case. By the oral proof it appears that about the time the land was purchased from Dry, Mrs. McCaleb received quite a sum of money from an estate, and there is testimony tending to show that a part of this money went into this land; that the four McCaleb children by the first wife paid nothing on the land; that McCaleb and wife, with these four children, then all minors, moved and lived upon this land; that the children would leave upon attaining their majority; that McCaleb lived there until his death in 1901; that after his death, his widow either occupied it in person or by her tenant up to the trial, and was occupying it by tenant at the trial; that one of the sons rented the land of the father and paid him rent. Mrs. McCaleb testified about the making of the two deeds, but upon some points she is somewhat mixed and confused. As best we gather her testimony, it is to the effect that she understood that the deed which we first herein set out in full was made to her alone; that it was concluded to make one to both of them, and the second deed mentioned above was made; that she understood that this second deed was the conveyance, and it was taken home and kept there, but not recorded; that she always claimed under this unrecorded deed; that she had no knowledge that McCaleb's heirs were parties to the first deed until told by Wheeler, the administrator of her husband's estate, and did not even know that it was yet in existence, until that time. On this last point she is corroborated by testimony tending to show that the words, "Ara E. McCaleb and the lawful heirs of the said Ethelbert A. McCaleb," wherever they appear in the first deed, were in the handwriting of Ethelbert A. McCaleb, whilst other portions were not. The evidence is conflicting, as might be expected, upon what the father said about the title to the place; but the preponderance thereof is to the effect that he said the place belonged to defendant Ara E. McCaleb. At one time, when making a mortgage in an attorney's office, he refused to put in the land in dispute. The scrivener was getting the land numbers from some abstract books, and, when he called off the numbers of the land in dispute here, the deceased said: "That the Dry land?" And, being informed that it was, he then said: "I don't want to put that in. That belongs to the old woman." It should also be stated that Mrs. McCaleb testified, in cross-examination, that the deed having her name indorsed on the back was the deed which she thought she claimed under, and this is the first deed we have hereinabove set out. On this point she was evidently confused.

Upon the conclusion of the evidence we find this in...