Rausch v. Michel

• Decision Date: 21 December 1905
• Citation: 192 Mo. 293,91 S.W. 99
• Parties: RAUSCH v. MICHEL.
• Court: Missouri Supreme Court

91 S.W. 99

192 Mo. 293

RAUSCH v. MICHEL.

Supreme Court of Missouri, Division No. 1.

December 21, 1905.

1. APPEAL—REVIEW—SCOPE.

In an action at law, where no instructions were asked, given, or refused, there is no question for review on appeal except errors on the face of the record proper and the question whether, under the issues, the plaintiff made out a prima facie case.

2. SAME—FINDINGS.

The conclusiveness on appeal of findings or conclusions of fact supported by the evidence in an action at law is not affected by the incorporation of findings of evidentiary facts.

3. QUIETING TITLE—EVIDENCE—SUFFICIENCY.

In an action involving the title to real property, evidence held sufficient to sustain findings that the plaintiff's mother did not make any gift of the land to him, that he received possession from her with the understanding that he should receive title thereto at or before her death, that his possession was never hostile to her, that a quitclaim deed signed by her never passed out of her custody or control, or into his custody or control, and that there was no legal delivery thereof.

4. DEEDS—DELIVERY.

A manual delivery by a mother to her son of a quitclaim deed, which was never recorded, by which she did not intend to pass title, and which was immediately returned to her to retain possession of, to secure her support, was not a legal delivery sufficient to pass title.

Appeal from Circuit Court, Gasconade County; John W. McElhinney, Judge.

Action by Christian Rausch against Jacob Michel. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

R. A. Breuer and John W. Booth, for appellant. J. C. Kiskaddon and August Meyer, for respondent.

MARSHALL, J.

This is an action to recover the S. W. ¼ of the N. E. ¼ of section 13, and the S. E. ¼ of the N. W. ¼ of section 13, all in township 44, range 5 W., containing 80 acres, in Gasconade county, Mo. The plaintiff calls it an action under section 650, Rev. St. 1899, to determine the interest of the parties therein. The defendant gives it no name. The court treated it as an action under section 650, or as a bill of equity, it does not clearly appear which. The trial court entered a decree that the defendant stand seised of the land and that the plaintiff take nothing by his suit, and after proper steps the plaintiff appealed.

The Issues.

The petition alleges that in 1881 Dorothea Vetter, the mother of the plaintiff, was the owner in fee simple and in possession of the premises; that she made a verbal gift thereof to the plaintiff and put him in possession thereof in 1881, and afterwards, on the 30th of October, 1894, she executed and delivered to the plaintiff a quitclaim deed therefor; that from 1881 to 1901 the plaintiff was in the actual, open possession, relying on the gift, and in good faith claimed title to the property, and claimed to be the absolute owner thereof; "that by virtue of the promises aforesaid, plaintiff claims to be and is the owner of the absolute fee simple title of, in, and to said real estate," that defendant is in possession of the premises, and claims to be the owner in fee simple; that the defendant's claim of title is derived through a mortgage executed by Dorothea Vetter long after the fee simple title had passed from Mrs. Vetter to the plaintiff. The prayer of the petition is that the court adjudge the plaintiff to be the owner in fee simple, and that the defendant hath no title, interest, or estate in the land, and for costs. There is no prayer for possession.

The answer admits that Mrs. Vetter owned the land in 1881, but denies the alleged verbal gift to the plaintiff, or that Mrs. Vetter put the plaintiff in possession, or that she executed a quitclaim deed as alleged in the petition, and that plaintiff ever had possession of the real estate as alleged in the petition, and denies that the title ever passed from Mrs. Vetter to the plaintiff. The answer then affirmatively pleads that on the 14th of October, 1881, Mrs. Vetter became seised of the premises, and that she afterwards leased the same to the plaintiff at an annual rental of $36 a year, and that the plaintiff entered into the possession pursuant to the lease and continued to hold possession thereof, as in the answer afterwards alleged, without notice to Mrs. Vetter; that he claimed possession thereof adversely to her; that about the 30th of October, 1894, Mrs. Vetter executed a quitclaim deed purporting to convey the property to the plaintiff, "but, it being represented to her that said deed was intended to operate as a last will and testament, she did not deliver said deed to the plaintiff, but herself retained possession thereof, and afterwards destroyed the same"; that plaintiff paid no consideration for the deed; that on the 30th of November, 1882, Mrs. Vetter executed her mortgage on the premises to secure a debt of $100 she then owed one Henry Nolte; that prior to the year 1896 plaintiff became indebted to one Simon Boeger, represented by a promissory note for $89.30, and also to H. F. Brinkmann, represented by a note of $60, on both of which notes Mrs. Vetter was the surety; that on the 20th of February, 1896, Boeger recovered a judgment against the plaintiff and Mrs. Vetter for $92.90, and that Nolte and Brinkmann were pressing Mrs. Vetter for the amounts due them; that thereupon Mrs. Vetter, with the knowledge and without the objection of the plaintiff, applied to the defendant for a loan of money sufficient to satisfy and pay off said claims and demands; that defendant was informed and believed that plaintiff had no title, claim, or interest in the land except as tenant of Mrs. Vetter, and acting on such information and so believing, without notice that the plaintiff claimed said real estate in fee, the defendant did on the 28th of May, 1896, loan to Mrs. Vetter the sum of $300, and took her note therefor, payable one day after date, with 5 per cent. interest thereon, and to secure the payment of such note Mrs. Vetter executed and delivered to the defendant her mortgage with power of sale, which was duly recorded, and that out of said loan Mrs. Vetter paid off said claims; that upon default being made in the payment of the note, the mortgagee foreclosed the mortgage on the 21st of October, 1899, and one Edward Michel became the purchaser, and the mortgagee executed a conveyance to him, which was duly recorded, and thereafter Edward Michel conveyed the same to the defendant, and his deed was recorded; that within a short time afterward the plaintiff voluntarily abandoned the possession of the premises, and the defendant entered upon the possession of the premises, and now holds the same.

The reply admits the defendant's claim of title, but denies all other allegations of the answer, and then affirmatively pleads that at the time of the execution and delivery of the mortgage of Mrs. Vetter to the defendant, the plaintiff was in the actual possession of the real estate, and had been in such possession more than 10 consecutive years, claiming it adversely to all persons, and that at the time the defendant made the loan to Mrs. Vetter, he had actual notice that plaintiff was in the actual possession of the land and of his title thereto, and of the conveyance from Mrs. Vetter to the plaintiff.

The case was tried before the court without a jury, and at the request of the plaintiff the court made a special finding of facts, as follows: "The court finds the facts in this case to be as follows: The plaintiff is the son of Dorothea Vetter. Said Dorothea Vetter became owner in fee of the land described in plaintiff's petition, October 17, 1881, by deed conveying the same to her. In the same year 1881, shortly after she became the owner of said land, she placed the plaintiff in possession of the same, and thereafter permitted him with her knowledge and consent to occupy and use and possess the same, claiming the same as his own against all persons other than the said Dorothea Vetter; that he so used and held possession of said land and claimed the same from the year 1881 until about the year 1899; that during all the time the land was used and possessed by said plaintiff he recognized that the said Dorothea Vetter was the owner thereof and did not at any time claim the same as against her; that said Dorothea Vetter, when she placed the plaintiff in possession of said land, did not make any absolute or unconditional gift of the same to him, but during all the time of his possession thereof permitted him to hold, possess, and use and improve the same, with the expectation and understanding that he would at some time, either at or before her death, receive from her the title to the same, and that in the meantime she would hold the title thereto for her own protection, and to secure from him a part of her necessary support; that during the period of his possession of the same his possession thereof was not at any time hostile or adverse to said Dorothea Vetter; that on the 30th day of October, 1894, the said Dorothea Vetter, at the house occupied by plaintiff on said land, signed and duly acknowledged her quitclaim deed of conveyance of said land, purporting to be for a consideration of $100, therein expressed, to remise, release, and forever quitclaim to plaintiff the land aforesaid, to have and to hold the same to plaintiff and his heirs and assigns forever. Upon so signing and acknowledging said quitclaim deed said Dorothea Vetter handed the same to the plaintiff saying: `Here is the deed to your land. I hope you will do what you have promised,' or words to that effect. Thereupon the plaintiff said, `All right,' took the deed so handed to him, and handed the same to his wife to read it, for the reason that he could not read. Thereupon, and as a part of the same transaction, the question was asked whether the deed should be recorded, and said Dorothea Vetter answered, `It is best not yet, if something should happen and I could demand them...