Poplin v. Brown

• Decision Date: 06 July 1918
• Docket Number: No. 2149.,2149.
• Citation: 200 Mo. App. 255,205 S.W. 411
• Parties: POPLIN v. BROWN.
• Court: Missouri Court of Appeals

205 S.W. 411

200 Mo. App. 255

POPLIN v. BROWN.

No. 2149.

Springfield Court of Appeals. Missouri.

July 6, 1918.

Appeal from Circuit Court, Lawrence County; Charles L. Henson, Judge.

Replevin by R. T. Poplin against Marvin Brown. From the judgment rendered, defendant appeals. Reversed and remanded.

I. V. McPherson and J. A. Potter, both of Aurora, for appellant. E. J. McNatt & Carr McNatt, of Aurora, and D. H. Kemp, of Monett, for respondent.

STURGIS, P. J.

This is a suit in replevin for an automobile, the petition being in the usual form. Plaintiff bases his title and right to possession on a bill of sale signed by defendant, whereby defendant, "for the consideration of one dollar and other valuable considerations" to him paid, the receipt of which is hereby acknowledged, "does sell, assign, transfer, and set over and deliver" to plaintiff the automobile in question. The answer is a general denial, and that the bill of sale was given in connection with a contemplated trade and exchange of the automobile for 120 acres of land in Barry county, Mo.; that the bill of sale was delivered on condition only, and was to be returned in case the trade was not completed; that the car was never delivered, nor to be delivered, except upon delivery by plaintiff of an abstract showing merchantable title to the land in plaintiff, which was to be examined and approved by defendant's counsel; that in the event the title was not approved by defendant's counsel the bill of sale was to be returned to defendant or destroyed; that the bill of sale was without consideration; that plaintiff failed to furnish a good and complete abstract of title, showing merchantable title in plaintiff; that defendant submitted said abstract to his attorney, and was advised by his attorney that said abstract was not complete, and that it did not show a merchantable title to said land in plaintiff; that defendant thereupon returned said abstract and deed to plaintiff, and demanded a return of the bill of sale; also that the terms and conditions of the said agreement to make said exchange were never performed and complied with by plaintiff, and that therefore the plaintiff never was the owner of, or entitled to the possession of, the car in controversy; that the contract to exchange the said car for said land, being oral, was within the statute of frauds, and was void. On plaintiff's motion the court struck out the above defenses, except the general denial and the plea of the statute of frauds.

On the trial of the case the court ruled out all of the evidence offered as to the terms and conditions of the trade, what the consideration was, etc., but ruled that plaintiff might show whether the trade was completed, "whether the bill of sale was solely to hold the trade till completed or given in execution of the trade itself, and whether the trade was completed at the time the bill of sale was delivered." Under this ruling the plaintiff's evidence was to the effect that the sale was consummated at the time the bill of sale was delivered to him; that the automobile was left at the garage in Aurora, Mo., where defendant had been keeping it, and when he returned in a few days it was at another garage undergoing repair; that, being refused possession, plaintiff brought this suit; that in the meantime he sent to defendant a deed to the land, with an abstract of title, as he had agreed. The defendant's evidence was to the effect that the trade was to be consummated only on condition that plaintiff furnish an abstract showing a good merchantable title to the land; that plaintiff failed to do this; that the automobile was never delivered to plaintiff; that defendant executed the bill of sale and gave it to plaintiff, not to pass the title to him, but at plaintiff's request to enable him to show it to another party, with whom he was on a deal, and that same was to be returned to defendant in case the title was not approved by defendant's attorney; that, the title not proving good, the deed and abstract were returned to plaintiff, and the deal never consummated.

Later in the trial the court struck out all this evidence (designating it as evidence to show that the bill of sale was given merely to bind or as evidence of the trade, and with no intention that the title to the property be passed), for the reason that it contradicts the terms of the bill of sale itself. The court thereupon held the bill of sale conclusive of plaintiff's title, and that defendant was entitled to a directed verdict. The court indicated its views of the law to be that section 1974, R. S. 1909, does not permit oral evidence to be given to show a failure of consideration under the above facts; that oral evidence cannot be permitted to overthrow the inviolability or to defeat the operative words of conveyance; that the rule as to deeds also applies to bills of sale, to the effect that the operative words of conveyance cannot be a subject of dispute. The court bases its ruling on Wishart v. Gerhart, 105 Mo. App. 112, 115, 78 S. W. 1094, where it is held that, while the recited consideration in a deed may be explained, or shown to be different in amount or kind, yet the deed cannot be defeated as a conveyance, or its operative words destroyed, by showing a failure of consideration.

It may be conceded that a deed, when it is a deed, cannot be avoided as a conveyance by evidence aliunde, in the absence of fraud, mistake, or the like. Plaintiff cites a number of cases sustaining this proposition. Strong v. Whybark, 204 Mo. 341, 348, 102 S. W. 968, 12 L. R. A. (N. S.) 240, 120 Am. St. Rep. 710; Weissenfels v. Cable, 208 Mo. 515, 534, 106 S. W. 1028; Edwards v. Latimer, 183 Mo. 610, 626, 82 S. W. 109. It must be conceded, however, that, except as to defeating it as a conveyance or destroying its operative effect, the recited consideration of a deed may be shown to be different in amount than that recited, and also different in kind or character—that is, that the consideration was other property or land—and it may be shown that same has not been paid. Edwards v. Latimer, supra. "Where the consideration is a mere recital of an existing fact, it may be shown to be other than that recited. If the consideration is recited to have been paid, it may be shown that it was not; if it be recited to be one sum, it may be shown to be a different sum; and if it be recited to be money, it may be shown to be some article of property." Da iris v. Gann, 63 Mo. App. 425, 428. It may be conceded, also, that a bill of sale has a like farce in this respect as a deed, is a symbolic delivery of the property, and vests title in the grantee. Speaking of the effect of a Jill of sale of lumber, the court in Collins v. Wayne Lumber Co., 128 Mo. 451, 466, 31 S. W. 24, 28, said:

"As between the vendor and vendee, no question of fraud being raised on the record, when this lumber was separately stacked, marked with Collins & Co.'s initials, and measured, and a formal unconditional bill of sale was executed and delivered to plaintiffs the title to the lumber passed, notwithstanding plaintiffs still owed a balance which was to be paid when they shipped the lumber out of Clearwater. * * * No other delivery was necessary to complete the same."

The fundamental error of plaintiff's and of the trial court's position is that it assumes that there was a delivery of the bill of sale. To make the bill of sale valid as a conveyance, delivery is essential, just as it is with a deed. Delivery, as an essential fact to the validity of a conveyance, does not merely mean that the physical control or possession of the instrument is given over by the grantee or lost by the grantor. Delivery involves intent, as well as physical control, and there is no delivery, such as makes the instrument a present conveyance, unless the grantor so intended it. Powell v. Banks, 146 Mo. 620, 632, 48 S. W. 664. To make the writing pass the title, the grantor must deliver it for that purpose, and as a conveyance, and not for some other purpose. In McNear v. Williamson, 166 Mo. 358, 367, 66 S. W. 160, 162, the court said:

"Delivery of a deed is the consummation of the act, the completion of the contract, and in order to its accomplishment there must be a meeting of the minds of the parties on the purpose. 'In order to ascertain whether there has been a delivery of that deed or not, the intention of the parties in the entire transaction must be considered in connection with what they said and did.' Miller v. Lullman, 81 Mo. loc. cit. 316. The act must have been with the intent on the part of the grantor to divest himself of title, and it must have been accepted by the grantee with the intent to take the title as indicated in the deed. These two facts are essential to the complete delivery of the deed."

And in Bunn v. Stuart, 183 Mo. 375, 384, 81 S. W. 1091, 1094, the court held that:

"A deed may be deposited with the grantee or handed to him for any purpose other than as the deed of the grantor, or as an effective instrument between the parties, without becoming at all operative as a deed."

This is a quotation from a New York case, and the same quotation is made part of the text of 1 Devlin on Real Estate, § 271, under the caption "Delivery for Inspection," where many cases are cited, showing that the mere fact that the manual possession of a deed or other conveyance is given by the grantor to the grantee is not conclusive that such conveyance has been "delivered" in the legal sense, and that parol evidence is admissible to show that the conveyance, though, absolute on its face, was not delivered with the intention to pass the title but for some other purpose. 1 Devlin on Seal Estate, § 295, states the law thus:

"It may be shown by parol evidence that a deed in the possession of the grantee was not delivered. The principle that parol evidence is not admissible to contradict a deed has no application to a case of this kind. There is a distinction to be...