Rogers v. Carey

• Decision Date: 31 January 1871
• Citation: 47 Mo. 232
• Parties: HENRY C. ROGERS, Plaintiff in Error, v. JAMES M. CAREY, Defendant in Error.
• Court: Missouri Supreme Court

47 Mo. 232

HENRY C. ROGERS, Plaintiff in Error,

v.JAMES M. CAREY, Defendant in Error.

Supreme Court of Missouri.

January Term, 1871.

Error to First District Court.

Ewing & Smith, with Burke & Howard, for plaintiff in error.

The Circuit Court erred in refusing to allow the deed from Alexander to Carey and Stevens to be read in evidence. The land it described had been sold to Carey and Stevens, and they had entered into possession of same. The sale to Carey and Stevens and entry into the premises was a delivery and acceptance of the deed. Although the deed remained in Alexander's custody, it was constructively delivered, and he was a mere bailee thereof. (12 Johns. 536; 13 Johns. 285; 3 Mason, 398; 5 Humph. 411.) Actual delivery of the deed was not necessary to pass title to Carey and Stevens. It was sufficient if they purchased and Alexander sold the land to pass the legal title, without regard to who held the deed. (1 Saxton, 458.)

Gordon, and Draffen & Muir, for defendant in error.

I. The action of the court in excluding the deed purporting to be the deed of Alexander, from the jury, was proper and right, as it appeared that the deed had never been delivered. (4 Kent, 453.)

II. Under any view that may be taken of this case, the plaintiff has no right to complain. As he purchased of Burke, who purchased at sheriff's sale, he could only acquire such title as the defendants in the execution had in the land at the time of the sheriff's sale; and the delivery of the deed even to the execution debtor himself, subsequent to the sheriff's sale, would not inure to the benefit of the execution purchaser, for the reason that a sheriff's deed does not carry an indefeasible estate in fee simple absolute, but only operates to convey such an interest as the defendant in the execution may have at the time of the sale. (Gen. Stat. 1865, p. 442, § 3; 39 Mo. 537.)

III. This being an action of ejectment, the plaintiff was bound, before he could recover, to show that he had the legal title to the land sued for; and having failed to do this, he was properly nonsuited. (33 Mo. 219.)

BLISS, Judge, delivered the opinion of the court.

This is an action of ejectment by one who claims title through a purchase at sheriff's sale upon execution. Some years since, one Alexander sold to Carey and Stevens, the execution defendants, a lot of land, claimed to be the one in controversy, but in drawing his deed described another parcel of land. Afterward judgments were rendered against said Carey and Stevens, and the land, as described in the deed, was bid in by one Robinson, who by the same description conveyed to defendants. Burke, the attorney for the plaintiffs in execution, was advised of this alleged error in the description, caused other executions to be issued upon the same judgments, bid the property in, received a sheriff's deed of the land by (as he claims) a correct description, and deeded the same to the plaintiff. Shortly after the last sale, in order to perfect the title of Carey and Stevens and make the sale operative, Burke obtains from Alexander a deed to them of the land which he alleges was intended to be sold; but this deed was never delivered to the grantees, and it is in evidence that Carey and Stevens had before expressly refused to receive it.

The plaintiff, to sustain his title, offered in evidence the deed so obtained by Burke, which was ruled out upon the ground that it was never delivered to the grantees. The court thereupon instructed the jury that the plaintiff had shown a title to the premises, and he took a nonsuit, followed by the usual motions, which were overruled, and the District Court sustained its action.

The plaintiff complains of this action of the Circuit Court upon two grounds. First, he contends that the question of delivery was one of fact, to be left to the jury; and, second, that the court was wrong in holding that there was no delivery. Upon the first point it is only necessary to say that when the facts are undisputed, their legal effect is a question of law upon which the court may be required to pass, so that the second is the only point to be considered.

The plaintiff does not pretend that there was an actual personal delivery, but claims that inasmuch as the grantees had taken possession of the land, and their interest in it had been sold upon execution, a delivery to the purchaser should be held to be a constructive delivery to them, notwithstanding they refused to receive it, and notwithstanding such purchaser was not in possession.

I have examined most of the authorities within reach upon the subject of delivery of deeds, and find nothing to warrant this claim. A person can not be held to have received a deed against his own consent. He may, in a proper case, be compelled to take it by an order of court, but otherwise it must be considered a voluntary act. This voluntary act need not be affirmatively proved, for if the obligee or grantee have the instrument in possession, it is prima facie evidence of delivery. (Games v Stiles, 14 Pet. 322; Ward v. Lewis, 4 Pick. 520; Green v. Yarnall, 6 Mo. 326, and many other cases.) In Maynard v. Maynard, 10 Mass. 456, and in Sampson v. Thornton, 3 Metc. 275, it is held to be no delivery if the grantor execute the deed and send it to be recorded without the consent of the grantor. Subsequent assent, however, makes the delivery good. (Cooper v. Jackson, 4 Wis. 537; Rathbun v. Rathbun, 6 Barb. 98; Boody v. Davis, 20 N. H. 140.) In Ohio, however (Lessee of Mitchell v. Ryan, 3 Ohio St. 377), in a well-reasoned opinion, it is held that a deed of gift from a father to a child, sent to record without the knowledge of the child, was presumed to have been delivered, and that that presumption can only be rebutted by proof of actual dissent or refusal to receive it. (See also Tibbals et al. v. Jacobs et al., 31 Conn. 428.) In Hulick v. Scovill, 4 Gilm. 159, the authorities pertaining to the delivery of deeds are elaborately reviewed; and though two of the judges dissent from the opinion of the court, yet all agree that there can be no delivery without the express or presumed consent of the grantee or party in interest.

It was once held that a disclaimer by deed was necessary, or a delivery would be presumed; but the annotators to Coke, in a note to Butler and Baker's case (3 Coke, 26 b), say: ...