Potter v. Adams

• Decision Date: 26 November 1894
• Citation: 125 Mo. 118,28 S.W. 490
• Parties: POTTER et al. v. ADAMS et al.
• Court: Missouri Supreme Court

28 S.W. 490

125 Mo. 118

POTTER et al. v. ADAMS et al.

Supreme Court of Missouri, Division No. 1.

November 26, 1894.

UNRECORDED DEED — DESTRUCTION BY GRANTEE — EFFECT — FRAUDULENT CONVEYANCE — ATTACK BY EJECTMENT SUIT — ADVERSE POSSESSION — HUSBAND AND WIFE.

1. A grantee who voluntarily destroys an unrecorded deed, for the purpose of revesting title in the grantor, is estopped to assert title under such deed.

2. A deed of land made to hinder, delay, or defraud creditors may be attacked in an ejectment suit wherein plaintiff claims title under a

sheriff's deed made by virtue of a creditor's judgment.

3. Where a husband destroys his unrecorded deed in order to reinvest title in his vendor, and then procures a deed of the land to be made in fraud of his creditors to a third person in trust for his wife, which is recorded, and both remain in possession of the premises for more than 10 years, the wife having title under the trust deed, and her husband having no title, she must be deemed to have sole possession during their joint occupancy, and title will vest in her by virtue of the statute of limitations, running from the date of recording the trust deed.

Appeal from circuit court, Morgan county.

Action by Ida E. Potter and others against Howard and Frank Adams to recover possession of a tract of land. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

W. S. Shirk and J. A. Blevins, for appellants. D. E. Wray, for respondents.

BLACK, C. J.

The plaintiffs are the widow and heirs of Samuel W. Potter. They brought this action to recover 120 acres of land in Morgan county. All parties claim under John Hupp. The plaintiffs' evidence tends to show that John Hupp, sold the land in February, 1866, to Thomas Bain; that Bain and his wife moved upon the land at that date, and continued to reside thereon until 1879 or 1880, a period of about 14 years; that Hupp executed and delivered a deed, dated in February, 1866, conveying the land to Thomas Bain, which deed was never recorded; and, to defraud his creditors, Bain destroyed this unrecorded deed, and caused Hupp to execute another one, of date May 11, 1867, conveying the land to a trustee for the use of his wife. The plaintiffs also read in evidence two sheriffs' deeds, dated in October, 1884, conveying all the title and interest of Thomas Bain to Samuel W. Potter. These deeds are based upon judgments rendered against Thomas Bain in 1883 and 1884. One of the judgments seems to have been based upon a debt contracted by Thomas Bain prior to the date of the deed from Hupp to J. H. Potter, in trust for Emeline Bain. The defendants read in evidence the deed from Hupp to J. H. Potter, before mentioned, conveying the land to Potter, in trust for the sole use and benefit of Emeline Bain. As has been said, this deed bears date May 11, 1867, and was duly recorded on the 18th day of the same month and year. The defendants then read in evidence a deed from Emeline Bain and her husband to the defendant Howard Adams, and to one Philip Adams, dated August 8, 1888, and recorded in 1889. After Bain and wife left the land, in 1879 or 1880, they leased it to various persons, down to the date of the last-mentioned deed. For the year commencing March 1, 1883, the lease appears to have been made by Thomas Bain in his own name, and for that year the rents were paid to him. For the other years the land was rented by Mrs. Bain, and she received the rents. She and her husband resided together at all times. This suit was commenced in 1891, 24 years after the date of the alleged fraudulent deed.

The first inquiry presented by this record is as to the effect of the destruction of the first deed from Hupp to Thomas Bain, and the execution and delivery of the second by Hupp to J. H. Potter, conveying the land to the latter in trust for Emeline Bain. The destruction and cancellation of a deed after it has been delivered does not revest the title in the grantor. Title to land cannot be transmitted in that way. Where a deed has been lost or destroyed by accident or mistake, secondary evidence may be introduced of its existence, loss, and the contents thereof. But a different rule prevails where the grantee has voluntarily destroyed an unrecorded deed for the purpose and with the intention of revesting the title in the grantor. In such a case he will not be allowed to prove the contents of the destroyed deed by parol evidence. It was said in Farrar v. Farrar, 4 N. H. 191: "The true ground on which these decisions are to be supported is that the grantee having voluntarily, and without any misapprehension or mistake, consented to the destruction of the deed, with a view to revest the title, neither h...