Peters v. Berkemeier
| Citation | 83 S.W. 747,184 Mo. 393 |
| Parties | PETERS et al. v. BERKEMEIER et al., Appellants |
| Decision Date | 23 November 1904 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Charles Circuit Court. -- Hon. E. M. Hughes, Judge.
Affirmed.
Theodore Bruce & Son for appellants.
(1) It is the settled law in this State that a party claiming the legal title to land, and being out of possession, cannot invoke equitable jurisdiction to remove a cloud from such title. Graves v. Ewart, 99 Mo. 13; McRee v Gardner, 131 Mo. 599; Davis v. Sloan, 95 Mo 552; Janney v. Spedden, 38 Mo. 395; Odle v Odle, 73 Mo. 289; Clark v. Ins. Co., 52 Mo. 272; Keane v. Kyne, 66 Mo. 216; Dyer v. Krackauer, 14 Mo.App. 39; Dyer v. Baumeister, 87 Mo. 134. (2) The court erred in decreeing that the deed was not delivered. Powell v. Banks, 146 Mo. 632; Appelman v. Appelman, 140 Mo. 311; Crowder v. Searcy, 103 Mo. 97; Tobin v. Bass, 85 Mo. 654; Standiford v. Standiford, 97 Mo. 231; Hamilton v. Armstrong, 120 Mo. 623; Sneathen v. Sneathen, 104 Mo. 209; White v. Pollock, 117 Mo. 467; Williams v. Latham, 113 Mo. 174; Rothenbarger v. Rothenbarger, 111 Mo. 5; Rumsey v. Otis, 133 Mo. 95; Banks v. Worthington, 145 Mo. 104.
Charles J. Walker and Norton, Avery & Young for respondents.
(1) In the case at bar unless the recorded deed was set aside, the defendant would have had a good record title, and in order to set aside this deed, it required the introduction of extrinsic evidence, and this extrinsic evidence depended entirely upon oral testimony, and therefore brings this case in the same class of cases as Mason v. Black, 87 Mo. 329; Clark v. Ins. Co., 52 Mo. 272; and Railroad v. Nortoni, 154 Mo. 149. (2) Under the most favorable view of the case for the appellant, to work a delivery of the deed under the evidence given, it would be necessary that the court should find and decree that the mere act of William Peters and his wife signing the blank sheet of legal cap on the twenty-first day of May, and acknowledging the same, was such an act, perfect in itself, as to fix the title of the land in Berkemeier, and it seems to us the sheerest folly that such would be the case. Drury v. Foster, 2 Wall. 24; McQuie v. Peay, 58 Mo. 56; Huey Case, 65 Mo. 689; Hammerslough v. Cheatum, 84 Mo. 20; Abbie v. Justus, 60 Mo.App. 300; Mudd v. Dillon, 166 Mo. 110.
This is a bill in equity to cancel a deed to one hundred and sixty acres of land, in St. Charles county, being the west half of the southeast quarter and the east 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 cancelling 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 one dollar and love and affection; was dated September 22, 1896, was duly executed, and was recorded December 26, 1896, which was about sixty 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 one dollar and love and affection; that Peters gave 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." 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 of Peters (though which daughter he married does not appear), testified that he had a conversation with Peters a few days after the execution of the deed of September 22nd, and Peters told him that he had made a deed to Ben, and "Ben could take it any time he wanted to, but not have it recorded until after his death;" that the deed was "at Walker's."
Ernest Sudbrock testified that Peters told him that the place was Ben's; "that nobody could take it away from him; his deed was laying at Charlie Walker's office at Wentzville."
Fred Hoener testified that a week or two after the will was made (he was a witness to the will) Peters told him "that Ben and Ed had their deed now."
Ben Berkemeier testified he was in possession of the land when the first alleged deed was made and has had possession ever since.
In rebuttal Walker testified that he had no such conversation with Peters or his wife as Dr. Talley testified to.
This was all the testimony adduced in the case. The court entered a decree for the plaintiffs and ordered the deed cancelled, and the defendants appealed.
The defendants' first contention is, that the plaintiffs, not being in the possession of the land, cannot maintain this action.
In support of this contention, the defendants cite various decisions of this court, but seem to rely principally upon Keane v. Kyne, 66 Mo. 216, and Graves v. Ewart, 99 Mo. 13, 11 S.W. 971.
Keane v. Kyne was a bill in equity to cancel a deed on the ground that it was a forgery. This court held that the charge of forgery was not proven, but that the evidence clearly showed that the deed was genuine. It was then held that as the plaintiff was not in possession, he could not maintain the action. The result reached in that case was clearly right and the law declared was right as far as it was stated, but it omitted one element, and that was that one in whom the title is vested can not maintain a bill in equity to remove a...
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