Mudd v. Dillon

• Decision Date: 17 December 1901
• Citation: 65 S.W. 973,166 Mo. 110
• Parties: MUDD et al., Appellants, v. DILLON
• Court: Missouri Supreme Court

65 S.W. 973

166 Mo. 110

MUDD et al., Appellants, v. DILLON

Supreme Court of Missouri, Second Division

December 17, 1901

Appeal from Montgomery Circuit Court. -- Hon. E. M. Hughes, Judge.

Reversed and remanded.

Norton Avery & Young for appellants.

(1) There was no delivery of either of the deeds offered by the defendant. Hamerslough v. Cheatham, 84 Mo. 13; Abbe v. Justus, 60 Mo.App. 300; Sneathen v Sneathen, 104 Mo. 201; Huiser v. Beck, 55 Mo.App. 668; Pitts v. Sheriff, 108 Mo. 110; Tyler v. Hall, 106 Mo. 313; Huey v. Huey, 65 Mo. 689; Burke v. Adams, 80 Mo. 504; Standiford v. Standiford, 97 Mo. 231. (2) The deed of July 12, 1890, from John S. Dillon to George V. Dillon purporting to convey the 240 acres of land in sections 12 and 13 was absolutely void, and should not have been admitted in testimony. Carter v. Holman, 60 Mo. 498; Hardy v. Matthews, 38 Mo. 121; Campbell v. Johnson, 44 Mo. 247; Cass County v. Oldham, 75 Mo. 50; Ford v. Unity Church Society, 120 Mo. 498; Boyd v. Ellis, 11 Iowa 97; Bosworth v. Farenholz, 3 Iowa 87; Worthington v. Hylyer, 4 Mass. 205; Fuller v. Fellows, 30 Ark. 657; Bailey v. White, 41 N.H. 337; 30 Ark. 640; Doe v. Porter, 3 Ark. 18; Adams, Equity Jurisprudence, p. 25, and note; Missick v. Sunderland, 6 Cal. 297; 3 Washburn on Real Property (3 Ed.), p. 347; 2 Devlin on Deeds, sec. 1011; Cheneworth v. Haskil, 3 Peters 96; Boardman v. Reed and Ford, 6 Peters 345. (3) The father being dead and the deed on its face showing it to be a voluntary conveyance as deed of gift, there can be no reformation. Ford v. Unity Church Society, 120 Mo. 498. (4) The court should not have admitted extrinsic testimony to identify the township and the range, over objection of the plaintiff. Authority cited under point 3, supra.

Fry & Clay and J. D. Barnett for respondent.

(1) The court will remember this deed was executed July 12, 1890, and was delivered by the grantor to John Shaw with instructions to deliver the same to the defendant, George Dillon, at the death of the grantor. The grantor died on the second day of February, 1897, and the deed was delivered on the twelfth day of February, 1897, and the defendant went into possession of said lands, and has continued in possession of the same ever since. There is no doubt but this was sufficient delivery to pass title. Devlin on Deeds (2 Ed.), sec. 328, states the general rule that the title passes upon a second delivery, that is, the delivery from Shaw to George Dillon, or upon the happening of the event, and the instrument will relate back to the first delivery so as to pass title at that time. The cases are fully set forth by said authority in that section. To the same effect: Appleman v. Appleman, 140 Mo. 309; Sneathen v. Sneathen, 104 Mo. 201; Rumsey v. Otis, 133 Mo. 85. The law presumes much more in favor of a delivery in case of a conveyance to a wife or child. Hamilton v. Armstrong, 120 Mo. 597; Crawder v. Searcy, 103 Mo. 97; Standiford v. Standiford, 97 Mo. 231. (2) Equity by the aid of parol evidence will add or supply a misdescription or omission in a deed. The omissions of the township and range in which the land intended to be conveyed is situated, is a latent ambiguity, and extrinsic evidence was admissible to show what land the grantor intended to and did convey, and the deed was not void because of such omission. Rhodes v. Outcalt, 48 Mo. 367; Key v. Jennings, 66 Mo. 369; Cox v. Esteb, 81 Mo. 399; 2 Pomeroy's Equity, sec. 865; Henderson v. Dickey, 35 Mo. 120; Brocking v. Strat, 17 Mo.App. 304. And especially will the court correct a misdescription, and it is not necessary that the land be described either by section, township or range. 2 Devlin on Deeds (2 Ed.), secs. 1012-1013; Craven v. Petit, 16 Mo. 210; Bollinger Co. v. McDowell, 99 Mo. 632; Hammond v. Johnson, 93 Mo. 214; Hart v. Rector, 7 Mo. 531; Bates v. Bank of Mo., 15 Mo. 309; Bank v. Bates, 17 Mo. 383; Webster v. Blount, 39 Mo. 500; Cooley v. Warren, 53 Mo. 166; Tetherow v. Anderson, 63 Mo. 96.

OPINION

BURGESS, J.

This is an action of ejectment for the possession of three hundred acres of land in Montgomery county, to-wit, the east half of the northeast quarter and sixty acres off of the east side of the west half of the northeast quarter in section 12, and the east half of the northeast quarter of section 13, in township 50, range 4, west; also the east half of the southeast quarter of section 12, township 50, range 4, west. The case was tried by the court, a jury being waived. There was judgment for defendant, and after unsuccessful motion for a new trial, plaintiffs bring the case to this court by appeal for review.

The plaintiffs are daughters and grandchildren, and the defendant a son, of John S. Dillon, deceased. In July, 1890, John S. Dillon owned four hundred and forty acres of land in sections twelve and thirteen, township fifty, of range four in said county, which he had occupied with his family for many years prior to his death on February 2, 1897. On July 12, 1890, he executed a warranty deed to defendant for the recited consideration of two thousand dollars, by which he attempted to convey to him two hundred and forty acres of his land, and at the same time executed a general warranty deed to three of his grandchildren known as the McKelvey heirs, conveying to them one hundred acres of his land. At the same time he executed a will by which he disposed of his personal property. The deed to defendant simply described the land as being "80 acres the E 1/2 of the N. E. 1/4 and 60 acres off of the E side of the W 1/2 of the N E 1/4 of sec. 12, and 80 acres of the E 1/2 of the N E of sec. 13, containing 240 acres according to the U.S. Survey," in the county of Montgomery in the State of Missouri.

He took the deeds and will to his nephew, John Shaw, sealed them in an envelope, wrote his own name upon it and gave it to John Shaw to keep, with certain instructions, that is, to probate the will at his death and deliver the deeds to the persons mentioned therein.

Afterwards, in 1893, he made another deed to the defendant of 80 acres of land that he did not own in 1890, and took this deed also to John Shaw and delivered it to him with the same instructions given him before, Shaw testifying that the original directions in 1890 covered all the papers.

Sometime after this, John S. Dillon went to Shaw's house and asked him if he had a fire in the kitchen. Shaw responded that he had. Dillon then said to Shaw: "Give me my papers." Shaw got the papers (he had never unsealed them) and delivered them to Dillon. Dillon gave them back to Shaw, and told him to hunt out the deed made to the McKelvey heirs, which he (Shaw) did, and gave it to Dillon, and Dillon immediately burned it and substituted another deed to only two of the McKelvey heirs, and delivered them to Shaw, but there is no pretension that any instructions were given Shaw at this time as to the delivery of the papers at his (Dillon's) death.

Afterwards, John S. Dillon disposed of a part of the land contained in the deed of 1890 to defendant George V. Dillon, to one Samuel Mudd, executed a deed, and delivered that deed to Mudd, and received the compensation therefor.

Shaw testified that, "Some time in the summer of 1890, John S. Dillon came to my house and told me he had some papers he wanted me to hold. He said a will and two deeds; he wanted me to probate the will at his death. I asked him if he wanted me to put the deeds on file at his death, he said no. He says, 'Give them over to the parties made to, open them and whoever they are made to deliver them to.' About two or three years after that he brought another paper and says, 'Here is another paper I want you to hold.' That was the deed to the land, to the 80 acres of land Mr. George Dillon lives on. And about a year before he died he came to my house again; he come into the house and talked a right smart while and took me out of doors and had a right smart talk. He says, 'Have you a fire in the kitchen?' I told him I had; he says, 'Bring my papers in there,' and he opened them and he says, 'My eyes ain't very good, hunt up the McKelvey deed.' I hunted it up and handed it to him, he says, 'Stick it in the fire,' and he says, 'Now I will tell you what I am driving at.' He says, 'I had that land I wanted to go to the McKelvey boys, I had it made to five,' he says, 'I never slept over it because they would have to sell it to make a division.' He says, 'I wanted it to remain in their name.' He says, 'I think I have the property fixed like I want it to go; I don't want it to get into law.' At the time he took out the McKelvey deed and burned it, he put another deed in, and sealed it up and handed them back to me. These deeds were never out of my possession afterwards until after I delivered them to the proper authorities. The deed dated March 21, 1893, is the second one he gave me, this one dated July 2, 1890, is the first one he brought. The deed dated July, 1890, was delivered to me some time about that time and remained in my possession until after his death. I delivered them to the parties, George Dillon and the McKelvey heirs, I think, in February after his death. The deed dated March 21, 1893, was delivered about three years after the other one. It was not out of my possession until after his death, when I delivered it to George Dillon. The land described in the deed of March 21, 1893, John S. Dillon bought about two years after he delivered me the first deed. This deed dated July 12, 1890, is in the handwriting of Captain Hammack. I do not know whose handwriting the deed of March 21, 1893, is."

On his cross-examination the following occurred: "When John S Dillon brought me the papers in 1890 he did not say anything about retaining control of the land but I know he...