Rausch v. Michel

• Decision Date: 21 December 1905
• Citation: Rausch v. Michel, 91 S.W. 99, 191 Mo. 293 (Mo. 1905)
• Parties: CHRISTIAN RAUSCH, Appellant, v. JACOB MICHEL
• Court: Missouri Supreme Court

91 S.W. 99

191 Mo. 293

CHRISTIAN RAUSCH, Appellant, v. JACOB MICHEL

Supreme Court of Missouri, Division One

December 21, 1905

Appeal from Gasconade Circuit Court. -- Hon. John W. McElhinney Judge.

Affirmed.

R. A Brewer and John W. Booth for appellant.

(1) A judgment or decree which recites the findings of fact upon which it is based must be such a judgment or decree as those facts justify. When on the trial of questions of fact by the court, in a case at law or in equity, a special finding of facts is requested, section 695 requires the court to state in writing its findings of fact separate from its conclusions of law, and the facts so found and stated must be such as on the pleadings justify the judgment or decree entered thereon. Loan & Trust Co. v. Browne, 157 Mo. 116. In the case at bar the court's findings of fact are under the pleadings insufficient to support its conclusions of law and final decree. (2) The relation of parent and child is a good consideration for a conveyance of land by the parent to the child. Chitty's Blackstone, book 2, side p. 297. (3) Though a deed recites a valuable consideration, it may be sustained by proof of a good consideration. Jackson v Railroad, 54 Mo.App. 642. (4) If a deed expresses a consideration the grantor is estopped to deny that the title passed. Bobb v. Bobb, 7 Mo.App. 501; Winningham v. Pennock, 36 Mo.App. 694. (5) "A valid deed, once delivered, has the effect of vesting the title in the grantee, and although it may be after-ward destroyed or come into the possession of the grantor, it will not operate as a revestiture of the title." State ex rel. v. Dulle, 45 Mo. 268.

J. C. Kiskaddon and August Meyer for respondent.

(1) The judgment ought to be affirmed or the appeal dismissed, for the reason that appellant has failed to comply with the rules of the court in preparing his so-called abstract. He seems to especially criticise the finding of the court, but he fails to set forth the evidence so that this court may be advised whether the finding is warranted or not. (2) Declarations of parties, some of them made long prior to the execution of the deed, have little probative force. Such loose statements, if competent for any purpose, ought to be received with great caution. Cornet v. Bertelsman, 61 Mo. 127; Fanning v. Doan, 139 Mo. 411. (3) This action seems to have been treated in the court below as a suit in equity. If it is such it is one for the specific performance of a parol gift of land. While the petition alleges that plaintiff took possession in pursuance of such gift, yet it does not state facts sufficient to constitute a cause of action, for the reason that it fails to allege that in pursuance of said gift he made lasting and valuable improvements on the land, or that he undertook, did or performed any obligation in consequence of such gift. West v. Bundy, 78 Mo. 407; Anderson v. Scott, 94 Mo. 637. (4) But the evidence to establish a present parol gift must be of such a character as to leave no reasonable doubt that it was actually at the time made. Berry v. Hartzell, 91 Mo. 136; Railroad v. McCarty, 97 Mo. 222. (5) But is this suit a suit in equity for the specific performance of a parol gift? The petition alleges that the owner in fee of the land, Mrs. Vetter, made and delivered to plaintiff a deed conveying the land to him. If such be the fact, then he had a complete remedy by action of ejectment. Proof of the execution and delivery of the deed would be sufficient, even if the deed were lost or destroyed. Ebersole v. Rankin, 102 Mo. 503. (6) But after all, the real question in this case is whether or not the deed of Mrs. Vetter to plaintiff was delivered. If delivered it passed the title; if not, it did not. Crowder v. Searcy, 103 Mo. 117; Hall v. Hall, 107 Mo. 107. (7) To constitute a delivery the grantor must unreservedly part with all dominion over the deed, and the grantee must unreservedly accept it. The intent to deliver and accept is necessary and mutual. Cravens v. Rossiter, 116 Mo. 343; Standiford v. Standiford, 97 Mo. 238; Tyler v. Hall, 106 Mo. 320; Powell v. Banks, 146 Mo. 632; Mudd v. Dillon, 166 Mo. 110; McNear v. Williamson, 166 Mo. 358. (8) Whether this proceeding be treated as a suit in equity or an action at law, the plaintiff having requested the court to find the facts, cannot complain if there is error in that request and the court's compliance. It is plaintiff's own error committed at his solicitation. State v. Palmer, 161 Mo. 152; Sprague v. Sea, 152 Mo. 327; Harper v. Morse, 114 Mo. 317.

MARSHALL J. Brace, P. J., absent.

OPINION

MARSHALL, J.

This is an action to recover the southwest quarter of the northeast quarter of section 13, and the southeast quarter of the northwest quarter of section 13, all in township 44, range 5 west, containing eighty acres, in Gasconade county, Missouri. The plaintiff calls it an action under section 650, Revised Statutes 1899, to determine the interests 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 seized 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 premises 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 seized 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 five 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...