Rumsey v. Otis

• Decision Date: 03 March 1896
• Citation: 34 S.W. 551,133 Mo. 85
• Parties: RUMSEY et al. v. OTIS.
• Court: Missouri Supreme Court

34 S.W. 551

133 Mo. 85

RUMSEY et al. v. OTIS.

Supreme Court of Missouri, Division No. 2.

March 3, 1896.

DEED — DELIVERY — WARRANTY OF TESTATOR — DEVISEE'S LIABILITY — PROBATE COURTS — STATUTES REGULATING.

1. Evidence that a vendor, by direction of the vendee, who was indebted in another state, conveyed the land by deed absolute in form to the vendee's wife, and delivered it to a person designated by the vendee, is prima facie evidence of delivery to the wife, though the deed was afterwards found in possession of the husband, and he claimed the land.

2. Rev. St. 1889, § 8839, abolishes lineal and collateral warranties and their incidents, and provides that heirs and devisees shall be liable on covenants of the deceased to the extent of the land received. Held, that devisees are liable as provided by law in case of heirs on the warranties of their testator to the extent of the land devised.

3. Rev. St. 1889, § 247, regulating the refunding of legacies for payment of debts of the decedent's estate, and the apportionment thereof by "the court," applies only to the probate court in which the estate is being administered before final settlement of the estate.

4. Plaintiff claimed certain land in ejectment as heir of her mother. She was also a devisee of her father, and brought suit after final settlement of his estate. Defendant in ejectment held under warranty from the father. Held, that judgment of recovery should be stayed until defendant's damages for breach of warranty had been determined, and until plaintiff, as one of the devisees, paid her share of such damages, she being insolvent.

Appeal from circuit court, Nodaway county; C. A. Anthony, Judge.

Action of ejectment by Sarah Rumsey and others against Edward Otis. From a judgment for plaintiffs, defendant appeals. Reversed.

Less than three acres of land, of the yearly rental value of a dollar and a half an acre, is the bone of this contention. Plaintiff sues her brother, the defendant in ejectment, for an undivided one-seventh of the S. ½ of the S. W. ¼ of the S. W. ¼ of section 30, township 66, range 34, Nodaway county. In 1864, Thomas Stringer, living in Illinois, owned this land in Nodaway county, Mo. Merrill Otis and Tama Otis were the father and mother of plaintiff Sarah Rumsey. Merrill Otis and his wife and children were nonresidents. Edward Otis, a brother of Merrill Otis, lived in Nodaway county. Benjamin Slaughter was the resident agent in Nodaway county of Thomas Stringer. In October, 1864, Edward Otis purchased of Stringer, through his agent, Slaughter, the tract of which the land in controversy was a part, for his brother Merrill Otis. When the deed came from Illinois, it contained the name of Tama Otis, the wife of Merrill Otis, as grantee. The money was paid and the deed was delivered to Edward Otis. This deed was dated October 24, 1864, and was not recorded until April 18, 1884. Within three months, Merrill Otis and his wife moved upon the land. Tama Otis died in 1877, intestate, and Merrill Otis died, testate, in 1889. Edward Otis and Stringer had also been dead for many years at the time of the trial. It stands admitted that Reisin Otis, Sarah Ann Rumsey (the plaintiff), George Otis, Newton Otis, Absalom Otis, Mary F. Collins, and Edward Otis are the children and the sole heirs at law of both Tama and Merrill Otis, deceased. In 1879 and 1880, Merrill Otis conveyed to each of his said children an 80-acre tract of land, and the defendant received, as a part of his 80, the 20 acres in controversy here. The deed from Merrill Otis to defendant was a general warranty deed, of date October 15, 1880. Plaintiff Sarah A. Rumsey also received a warranty deed from her father to 80 acres. The evidence tended to prove that, when Slaughter sent the memorandum to Stringer to make the deed, he inclosed a slip directing how it should be made; and, when it came with Tama Otis' name as grantee, he called the attention of Edward Otis to it as a mistake, and Edward merely said, "That's all right." Merrill Otis lived on the land, and claimed it as his own until his wife's death, and after her death, until he conveyed it to his children. None of his children knew their mother's name was in the deed. That Merrill Otis paid for the land there can hardly be a doubt, nor that he always claimed it until he conveyed it. After the death of both Tama and Merrill Otis, and after his estate had been finally settled, the plaintiff commenced this action, as the heir of her mother to one-seventh. When the deed from Stringer to Tama Otis was recorded, it bore evidence of having been changed. The name of Tama had apparently been erased, and that of Merrill inserted in lieu thereof, and, being over 20 years old, it was held by the recorder of deeds. The plaintiff's claim of title is based upon the assumption that the deed was delivered to her mother, whereas the trial court found there had never been a delivery of the deed to her mother, either actual or constructive.

The declarations of law asked by plaintiff, and modified by the court, indicate alike the claim of plaintiff and the view of the court. They are as follows: The plaintiff requested the court to give the following declaration of law: "No. 1. If the court finds from the evidence that one Thomas Stringer was the owner of the land in controversy, and that he, through his agent, Slaughter, sold the same to Merrill Otis, and that Merrill Otis, either by himself or by instructions to his agent, had the name of Tama Otis, his wife, inserted in the deed from Stringer as grantee, and the said name of Tama Otis was inserted in said deed as grantee, and said deed was by the agent of said Stringer delivered to the agent of Merrill Otis with intent to pass title to said land, and the purchase money therefor was then paid to the agent of said grantor, then and in that case there was a delivery of the deed, and the title passed to said Tama Otis, and the finding should be for plaintiff." The court refused to give this declaration as prayed, but gave it after modifying it by words set out in parenthesis, as follows: "No. 1. If the court finds from the evidence that one Thomas Stringer was the owner of the land in controversy, and that he, through his agent, Slaughter, sold the same to Merrill Otis, and that Merrill Otis, either by himself or by instructions to his agent, had the name of Tama Otis, his wife, inserted in the deed from Stringer as grantee, and the said name of Tama Otis was inserted in said deed as grantee, and said deed was by the agent of said Stringer delivered to the agent of Merrill Otis with intent (of Merrill Otis) to pass title to said land (to said Tama, as a settlement, gift, or present to her), and the purchase money therefor was then paid to the agent of said grantor, then and in that case there was a delivery of the deed, and the title passed to said Tama Otis, and the finding should be for plaintiff." To the action of the court in refusing to give said declaration as prayed, and to the giving it as modified, the plaintiff at the time excepted. The plaintiff further prayed the court to declare the law as follows: "No. 2. If the court finds from the evidence that, at the time of the purchase of the land in controversy from Stringer by Merrill Otis, said Merrill Otis was heavily in debt, or had a large judgment against him, and to avoid having to pay the same, or for the purpose of defeating his creditors in the collection of the debt, he had the same deeded to his wife, Tama Otis, then and in that case the title to said land would pass to said Tama Otis from the time of delivery of said deed by the agent of Stringer, notwithstanding the deed may not have been actually delivered to Tama Otis, but held by Merrill Otis." The court refused to give said declaration as prayed, but gave it after its being modified by inserting words contained in parenthesis, as follows: "No. 2. If the court finds from the evidence that, at the time of the purchase of the land in controversy from Stringer by Merrill Otis, said Merrill Otis was heavily in debt, or had a large judgment against him, and to avoid having to pay the same, or for the purpose of defeating his creditors in the collection of the debt, he had the same deeded to his wife, Tama Otis (and the deed delivered to any one for her, with the consent of Merrill Otis), then and in that case the title to said land would pass to said Tama Otis from the time of delivery of said deed by the agent of Stringer, notwithstanding the deed may not have been actually delivered to Tama Otis, but held by Merrill Otis." To the action of the court in refusing to give instruction No 2 as prayed, and in giving it as modified, the plaintiff at the time excepted. The plaintiff further prayed the court to instruct and declare the law as follows: "No. 3. If the court, sitting as a jury, find from the evidence that the deed from Stringer to the land in question was delivered to the agent of Merrill Otis with the name of Tama Otis inserted therein as grantee, and with intent to pass title of said land, then and in that case the title passed to said Tama Otis, notwithstanding said Merrill Otis may have paid the purchase money therefor; and no subsequent change of the name of grantee in said deed would divest the grantee therein of...