Peters v. Berkemeier

• Decision Date: 23 November 1904
• Parties: PETERS et al. v. BERKEMEIER et ux.
• Court: Missouri Supreme Court

83 S.W. 747

184 Mo. 393

PETERS et al. v. BERKEMEIER et ux.

Supreme Court of Missouri, Division No. 1.

November 23, 1904.

CANCELLATION OF DEED — SUIT BY ONE HAVING EQUITABLE TITLE — POSSESSION — DEEDS — DELIVERY — NECESSITY — DELIVERY TO THIRD PERSON.

1. Those claiming lands under the will of their father, and as his heirs, and that a recorded deed to the lands from the father had never been delivered to the grantee, can maintain a suit to cancel the deed, though not in possession.

2. To make a deed effectual, it must be delivered to the grantee, or to some person for him, so that it has passed out of the control of the grantor.

3. Where a deed is beneficial to the grantee, and is placed on record by the grantor, or some one at his direction, a delivery and acceptance are to be presumed.

4. Where a landowner delivered a deed of the land to one other than the grantee named therein, with directions to deliver it to the grantee, it constituted a good delivery, and the deed could have been lawfully delivered by the holder to the grantee, even after the grantor's death.

5. Where a landowner, without consideration, executed a deed, and delivered it to a third person to hold, but gave him no instructions to deliver it to the grantee, and after the death of the grantor the grantee procured the deed from the holder and recorded it, a decree in favor of the grantor's heirs at law in a suit to cancel the deed was proper.

Appeal from Circuit Court, St. Charles County; E. M. Hughes, Judge.

Suit by Henry Peters and others against Benjamin Berkemeier and wife. From a decree in favor of complainants, defendants appeal. Affirmed.

Theo. Bruere & Son, for appellants. Chas. J. Walker and Norton, Avery & Young, for respondents.

MARSHALL, J.

This is a bill in equity to cancel a deed to 160 acres of land in St. Charles county; being the west half of the southeast quarter and the cast half of the southwest quarter of section 29, township 47, range 1. The circuit court entered a decree for the plaintiffs, and the defendants appealed.

The plaintiffs are Henry Peters, Edward Peters, Katie Kessler (and her husband), Clara Painter (and her husband), Elizabeth Painter (and her husband), and Annie Bornhap (and her husband), who are children of William Peters, who died on October 28, 1896. The defendants are Benjamin Berkemeier and his wife, Mollie Berkemeier; she being the only other child of said William Peters. The plaintiffs claim that they and their sister, the defendant Mollie Berkemeier, are the owners, as tenants in common of the land, as devisees under the will of their father, and would have inherited the same if there had been no will. The petition avers that during their father's lifetime, to wit, on September 22, 1896, he and their mother caused to be prepared a warranty deed for said land to the defendant Benjamin Berkemeier, their son-in-law; that they executed and acknowledged it, and left it in the hands of the scrivener, without any directions concerning its disposition; that they never delivered the deed to said Benjamin Berkemeier, nor to any one for him; that shortly after making the deed their father died; that the deed never was delivered to Berkemeier, or to any one for him, during their father's life; that after their father's death said Benjamin Berkemeier wrongfully and unlawfully obtained possession of said deed, and caused it to be placed upon record, and now asserts title to the land. The prayer of the bill is for a decree canceling the deed. The answer denies that the plaintiffs have any interest in the land, and then pleads that William Peters, "regarding with much favor and affection" his son-in-law Benjamin Berkemeier, on May 21, 1896, conveyed the land to said Berkemeier, and duly delivered to him the deed therefor, but that after the deed was so executed and delivered it became lost or misplaced, and that, to replace said lost deed, said Peters on September 22, 1896, executed the deed here in question, and delivered it to said Berkemeier, and that it was duly recorded on December 26, 1896. The answer further alleges that at the time of the execution of the said last deed, and ever since then, said Berkemeier has been in the possession of the land. At the trial the will of said William Peters was introduced in evidence, and it showed certain specific devises, and then the residuum of the estate, real, personal, and mixed, was devised to the aforesaid children of the testator. The deed in question was also offered in evidence. It was a general warranty deed, the consideration expressed being $1 and love and affection, was dated September 22, 1896, was duly executed, and was recorded December 26, 1896, which was about 60 days after the death of William Peters, the grantor. The only witness for the plaintiffs was C. J. Walker, who testified that on May 21, 1896, he received word that Peters wanted him to draw his will, and that he went with Dr. Talley to Peters' house and wrote his will for him; that Peters then told him to prepare a deed to Benjamin Berkemeier to the place he was then living on (being the property in controversy here); that he had no blank deed with him, so he had Peters and wife sign their names to some legal-cap paper, and took their acknowledgments to it, intending afterwards to write a deed on the paper above the signatures, and to affix his acknowledgment thereto, but that he never did so, and the paper was lost or destroyed, and he never saw it any more; that Peters never gave him any direction to deliver the paper, or the deed to be written on it, to Berkemeier, or to any one for him, or to have it recorded, and he never did so; that some time afterwards, of his own motion, he prepared the deed in question here, and took it to Peters, and he and his wife executed it on September 22, 1896, and he (Walker) took their acknowledgments to it; that Peters did not tell him what the consideration was to be, so he put in, $1 and love and affection; that Peters have him no direction to deliver it to Berkemeier, or to any one for him, or to have it recorded, and that he kept it in his possession until about two months after Peters' death, when Benjamin Berkemeier and Edward Peters came to his office, and one or the other of them — he could not remember which — told him to have it recorded, and he sent it to the recorder's office, with a memorandum, "Record, charge, and return to me." On behalf of the defendants, Dr. Talley testified: That he went with Mr. Walker to witness Peters' will, and that, after it was executed, Peters or his wife — he could not say which — asked Walker, "Did you bring along the deed to Ben and Mollie?" That Walker answered, "No; but you and your wife sign your names to this, and I will fill this out when I get back to my office, and you can get it at any time." "Ques. Who can get it? Ans. `Ben can get it at any time.' And the old man says, `That's all right,' and we left; and that's all I know about it." That they then signed their names to the blank piece of paper, and Walker said, "I will give it to Ben the first time he comes to town," and took their acknowledgment, and they came away. William Shultz, another son-in-law (though which daughter he married does not appear) of Peters, testified that he had a conversation with Peters a few days after the execution of the deed of September 22d, and Peters told him that he had made a deed to Ben,...