Peterman v. Peterman
| Decision Date | 05 March 1921 |
| Citation | 228 S.W. 1062,286 Mo. 375 |
| Parties | FRANK B. PETERMAN, Appellant, v. ROBERT E. PETERMAN |
| Court | Missouri Supreme Court |
Appeal from Clinton Circuit Court. -- Hon. Alonzo D. Burnes, Judge.
Affirmed.
W. S Herndon for appellant.
(1) The execution and acknowledgment of the deed conveying the land in controversy to the plaintiff, by Sarah F. Peterman, and leaving it with the Commercial Bank of Lawson, with directions to deliver the deed to the grantee after the death of the grantor, constituted a delivery of the deed, and placed the same beyond the control of the grantor. Standiford v. Standiford, 97 Mo. 231; Sneathen v. Sneathen, 104 Mo. 209; Schooler v. Schooler, 258 Mo. 83; Harvey v. Long, 260 Mo. 386; 8 R. C. L sec. 60, p. 595. (2) The bank holding the deed under the directions given could not surrender the deed to the grantor or grantee, prior to the death of the grantor. But both parties consenting thereto would authorize the bank to deliver the deed, prior to the time fixed by the grantor. Seibal v. Higham, 216 Mo. 132; Parsons v Parsons, 45 Mo. 265. (3) A delivery of the deed by the bank, to the grantee, prior to the time directed, if consented to by the grantor, passed the title, as of the date of the deed, and its effect as a present conveyance could not be changed by the mere physical possession of the deed taken afterwards by the grantor, nor could its destruction by her, change the plaintiff's rights under the deed. Terry v. Glover, 235 Mo. 550; Sneathen v. Sneathen, 104 Mo. 209; Allen v. DeGroodt, 105 Mo. 449. (4) The effect of a direct delivery of a deed to the grantee, cannot be obviated by the intention of the grantor that it shall operate merely as an escrow, or take effect only upon specific contingencies. 8 R. C. L. sec. 52, p. 983; Miles v. Robertson, 258 Mo. 725. (5) A delivery of a deed may be made by words, unaccompanied by act, or by act, unaccompanied by words, as well as by both words and acts. Schooler v. Schooler, 258 Mo. 92; Cannon v. Cannon, 26 N.J.Eq. 316; Harvey v. Long, 260 Mo. 386. (6) While it is essential to the validity of a deed that there be an acceptance of the instrument by the grantee, yet the delivery of a deed implies its acceptance by the grantee, in the absence of fraud, artifice or imposition. Miller v. McCaleb, 208 Mo. 578; 13 Cyc. 570. (a) In respect to a grantee who is under no disability, the rule is that when such grantee is aware of such conveyance and does not dissent, and the conveyance is positively beneficial to him or her, acceptance will be presumed. 5 Am. & Eng. Ency. Law, 444; Miller v. McCaleb, 208 Mo. 579. (b) The presumption of delivery of a deed or its acceptance is stronger in the case of a voluntary settlement than in a case of bargain and sale. Schooler v. Schooler, 258 Mo. 92; Rumsey v. Otis, 133 Mo. 95; Hamilton v. Armstrong, 120 Mo. 597; Crowder v. Searcy, 103 Mo. 97; Cannon v. Cannon, 26 N.J.Eq. 316; Williams v. Williams, 148 Ill. 430. (7) After the execution and acknowledgment of the deed conveying the land in controversy to plaintiff, the evidence shows that he took possession of the land and rented and collected the rents. This is evidence of the delivery of the deed and its acceptance. Schooler v. Schooler, 258 Mo. 83. (8) If there is any question as to the deed having been delivered to the plaintiff, then, as the evidence shows it was given into the possession of the plaintiff by the grantor or with her consent, and after she had parted with all control thereof, by leaving it with the bank to be delivered after her death, it devolved upon the defendant to show there was no delivery of the deed. This he failed to do. Burk v. Adams, 80 Mo. 504; Harvey v. Long, 260 Mo. 387. (9) That the defendant accepted the deed from his mother, with full knowledge of the existence of the prior deed to plaintiff, is established by the evidence, and he cannot defend on the ground of being a purchaser without notice. (10) No act, word, or deed of Sarah F. Peterman, made after the execution, acknowledgment of the deed and placing it beyond her control, could affect the title conveyed by the deed to the plaintiff, and all evidence as to such was incompetent. Potter v. Adams, 125 Mo. 118; First Natl. Bank v. Nichold, 43 Mo.App. 358; Enders v. Richardson, 33 Mo. 598; Boyd v. Jones, 60 Mo. 454; Ferry v. O'Neal 149 Mo. 467; Garland v. Harner, 17 Mo. 287; Miles v. Robertson, 258 Mo. 725 (11) The fact that defendant made improvements on the land after he obtained the deed from his mother, is no legal defense in this case. The statute provides a remedy by which he could recover the reasonable value of such improvements, if under the facts he was entitled to be remunerated. Secs. 2401, 2402, 2403, 2404, R. S. 1909. (12) Where a deed has been executed and acknowledged, the possession of such deed by the grantee is presumptive evidence of delivery. Scott v. Scott, 95 Mo. 300; Allen v. DeGroodt, 105 Mo. 450. (13) The court erred in refusing to give Instruction G asked by the plaintiff. Any condition that plaintiff was to remain single, even if not against public policy, would have to be written in the deed, in order to be valid. (14) The court erred in refusing to give Instruction H asked by the plaintiff. This instruction went to the defense of estoppel pleaded by the defendant. It was not the duty of the plaintiff to notify the plaintiff of his claim. And if the defendant knew of the existence of the deed to plaintiff prior to the time of his purchase there is no estoppel in the case. Am. & Eng. Ency. Law (2 Ed.) pp. 422-424; Stone v. Railroad Co., 261 Mo. 61; Vaughn v. Tracy, 25 Mo. 318; s. c. 22 Mo. 415; Lincoln v. Thompson, 75 Mo. 613; Squires v. Kimball, 208 Mo. 110; Shafer v. Deltie, 191 Mo. 377; Davis v. Wood, 161 Mo. 17; Wiggenhorn v. Daniels, 49 Mo. 160; Freeman v. Moffitt, 119 Mo. 280; Martin v. Jones, 72 Mo. 23. (15) The court erred in giving instruction number 5 asked by the defendant. This instruction is clearly erroneous. There was no such condition contained in the deed and no defense of the kind pleaded. The instruction is based on the fact of a delivery of the deed and it follows that if there was a contract between plaintiff and Sarah F. Peterman, by which he was to support her and remain single, during the life of Mrs. Peterman, and he did not perform it, it was an equitable defense, and would have to be pleaded. Russell v. Whiteley, 59 Mo. 199; Kennedy & Jackson v. Daniels, 20 Mo. 104; Johnson v. Fluetsch, 176 Mo. 464; McQuinn v. Moore, 225 Mo. 45. (16) The trial judge held this to be a jury case. We think he was right in that respect. This suit is an action at law. Dowd v. Bond, 199 S.W. 594; Newbrough v. Moore, 202 S.W. 547; Elsea v. Smith, 202 S.W. 1071; St. Louis Union Trust Co. v. Hill, 223 S.W. 434.
Lavelock & Kirkpatrick and James L. Farris's Sons for respondent.
(1) The statements of Sarah F. Peterman, made in the presence and hearing of Frank B. Peterman, were properly admitted in evidence. Poplin v. Brown, 200 Mo.App. 262; Edwards v. Latimer, 183 Mo. 624. (2) Appellant and his mother lived together on the home place, and under the evidence, it is but a reasonable conclusion that he attended to her business, and if so, this constituted a confidential relationship between appellant and his mother. Street v Goss, 62 Mo. 229; Hall v. Knappenberger, 97 Mo. 511; Kirschner v. Kirschner, 113 Mo. 296; Dausman v. Rankin, 189 Mo. 703; Kincer v. Kincer, 246 Mo. 437; Wendling v. Bowden, 252 Mo. 687; Parker v. O'Bryen, 181 Mo.App. 496. By reason of which, the deed deposited with Frank Clark, is, in the absence of evidence on the part of appellant showing that the deed executed by Sarah F. Peterman was her free act and deed, presumed to be the result of undue influence on the part of appellant. (3) Where a deed is executed by a parent conveying land to a child, in consideration of love and affection, the same test is applied as in cases involving wills. McFarland v. Brown, 193 S.W. 804; Jones v. Thomas, 218 Mo. 541, 542. (4) To constitute delivery of a deed, the grantor must unconditionally part with all dominion, possession and control over the instrument, and it must be the intention of the grantor that the instrument take effect as a present transfer of title to the grantee. Sneathen v. Sneathen, 104 Mo. 209; Chambers v. Chambers, 227 Mo. 282; Terry v. Glover, 235 Mo. 550. (5) Intention may be elusive, evasive and difficult of ascertainment, but it is the very quintessence of delivery, and without it there can be no legal transfer of title. Chambers v. Chambers, 227 Mo. 282. (6) Sarah F. Peterman had no intention, when she consented to the deposit of the deed here in question with Frank Clark, of parting with all control over it, or that it would be delivered to appellant except on condition that he remained single and took care of her during the remainder of her life. (7) Appellant has, by his silence and acquiesence for a period of more than seven years, when he had full knowledge that respondent had, in good faith, purchased said real estate, and executed his binding obligation therefor; that said real estate had been in good faith conveyed to respondent; that respondent had been in the continued and uninterrupted possession, use and occupation thereof, claiming same, for a period of more than seven years, and that the grantor in said deed, who then resided in Ray County, could give evidence as to his rights to said real estate, if any, estopped himself from claiming title to or demanding possession thereof. State ex rel. v. West, 68 Mo. 232; Burdett v. May, 100 Mo. 18; Stevenson v. Smith, 189 Mo. 466; Dexter v. MacDonald, 196 Mo. 399; Shelton v. Horrell, 232 Mo. 375. (8) The instructions of plaintiff, refused by the court, were properly refused and the...
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