Phillips v. Phillips
| Decision Date | 31 October 1872 |
| Citation | 50 Mo. 603 |
| Parties | AMOS R. PHILLIPS, Respondent, v. MURRAY PHILLIPS et al., Appellants. |
| Court | Missouri Supreme Court |
Appeal from New Madrid Circuit Court.
W. B. Napton, for appellants.
This suit for title is analogous to suits for specific performance. Where there is a trust or fraud, equitable courts will not interfere, but leave parties to their legal remedies. To get the aid of equity the plaintiff must be willing to do equity himself. (Sto. Eq., §§ 692-93, 706, 769, 787.) The facts show no intent to invest title at the time of the transaction. The deeds were retained in the possession of the grantor.
A. Hamilton and Couran & Ewing, for respondent
The plaintiff seeks not the performance of a contract, but to set up and perpetuate the existence of a pre-existing and completed contract or deed; not to create a title, but to restore the lost evidences of a perfect title.
The plaintiff seeks to quiet and have confirmed to him the title to some 9,000 acres of land which he claims were deeded to him by his father, Shapley R. Phillips, while living, but shows that the deeds were lost without being recorded. He makes the heirs of decedent parties, and also the heirs of Mrs. Phillips, now deceased, who was a second wife and not his mother, and who had elected to take a child's interest in the estate of her deceased husband. Mrs. Phillips' heirs alone seem to be defending, but I find a minor grandson of said Shapley R. among the parties, whose interest the court should protect without reference to the character of the defense made by his guardian. The whole claim, then, of the plaintiff must be treated as contested both by Mrs. Phillips' heirs, as inheriting her interest in the estate, and by the plaintiff co-heirs.
It is established by the clearest evidence that Shapley R. Phillips, in February, 1861, two years previous to his death, executed to the plaintiff three deeds to the land claimed in this proceeding, and that his said wife joined in the deeds, relinquishing her dower. These conveyances embraced all the land owned by decedent except the home farm of about 1,800 acres, and the consideration expressed was love and affection and $1,000, which sum the plaintiff does not claim to have paid. If there was no fraud or undue influence brought to bear upon the grantor, it is not pretended that a deed of gift of the kind described would be invalid; but it is asserted in the pleadings that one of the objects of obtaining those under consideration was to fraudulently deprive the widow of her dower. The testimony of the subscribing witnesses to the deeds, and of the magistrate who drew and acknowledged them, is contained in the record, and it is shown that she not only signed the instrument cheerfully, but that she was expressly told that they would cut off her dower, to which she replied that she knew what she was doing, that she was willing Amos should have all but the home farm. So far as the execution of the instrument is concerned, there is nothing to show any undue or improper influence brought to bear upon Mrs. Phillips. As well from her own declarations as from those of her husband it appears that they were both looking to the home farm for their future support, and it does not appear that the lands conveyed yielded any income, or would have been of any practical benefit to them by way of maintenance.
It is further claimed that the deeds were never delivered; that they were retained by the grantor, and continued in his possession until they were destroyed. This point is involved in some doubt. The plaintiff was a young man residing at his father's house. The latter went to a magistrate, stated his desire to make disposition of his land before he died, showed him a list and map of all his real estate, and directed him to embody all, except the home farm, in three deeds to his son Amos; that afterwards he returned with his wife, executed and acknowledged them, and handed them to his son, saying “Here, my son, are your deeds,” who put them in his pocket. This was the testimony of Mr. Morrison, the magistrate, and the delivery seems complete, but a doubt as to the bona fides of the transaction is raised from the fact that the instruments were never recorded, and were apparently in the grantor's possession at his death. I should deem these circumstances, unless explained, conclusive that the parties did not intend a complete transfer.
It is true that a registry of conveyance is entirely...
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