Rumsey v. Otis
| Decision Date | 03 March 1896 |
| Parties | Rumsey et al., Appellants, v. Otis |
| Court | Missouri Supreme Court |
Appeal from Nodaway Circuit Court. -- Hon. C. A. Anthony, Judge.
Reversed and remanded.
W. W Ramsay and R. H. Wilfey for appellants.
(1) There was a sufficient delivery of the Stringer deed so as to pass the title to Tama Otis and appellants' fourth instruction as asked should have been given. Parker v Parker, 8 N.W. (Iowa) 806. That case is in many respects similar to this. There the court say: "The delivery of the deed to plaintiff with the intention that it should take effect as a conveyance operated to divest Peters of his title to the property; and as title must vest somewhere and could vest in no one except the grantee named in the deed it follows title vested in the defendant at the moment title passed from Peters." Albright v. Albright, 36 N.W. 254; 2 Wait's Action and Def., 494, 495. (2) There was no resulting trust in favor of Merrill Otis, the husband of grantee. Deibold v. Christian, 75 Mo. 308. (3) There being sufficient specific legacies in the will of Otis as is undisputed, appellee's claim for breach of warranty has no foundation. Sec. 247, R. S. 1889. The court in its finding of facts that the deed was never delivered to Tama Otis, nor to any one for her is contrary to all the evidence on that point and is in fact inconsistent with its other finding that the name of grantee was changed before it was recorded and that Merrill Otis never intended this conveyance as a gift or settlement for the finding is equivalent to saying that Stringer had never passed title. If Stringer by his deed passed title from him (and there can be no question of that) then the title passed to grantee Tama Otis. There being no evidence that she was to hold it as trustee for her husband, the law assumed it to have been a provision for the wife, and this seems to have been Otis' idea as detailed by the witness John Busby.
S. R. Beech and E. A. Vinsonhaler for respondent.
(1) There is no evidence of actual delivery of deed to Tama Otis or of its acceptance by her, and these are as essential as the signing. 5 Am. and Eng. Encyclopedia, page 445; Rogers v. Carey, 47 Mo. 232; Moore v. Flynn, 135 Ill. 74. Neither was there a constructive acceptance by the husband, for the husband retained dominion over the deed and claimed the property as his, and there is no evidence that Tama Otis ever did claim it. Allen v. Drake, 109 Mo. 626. At common law the wife could not take title to land without the consent of the husband. 1 Washburn on Real Est. [4 Ed.] 334. While such assent will be presumed if advantageous, in the absence of evidence of dissent, yet all the testimony here shows that the husband never assented. (2) As to the change in deed, there is no evidence when it was done or who did it. Henry Toel, exrecorder, testified on the trial in 1892, that the writing looked the same as it did when filed for record in 1884, eight years before. In the absence of testimony what are the presumptions? First. Where a deed has been changed the presumption is that it was done before delivery. Holton v. Kemp, 81 Mo. 661. Second. The presumption is that all men obey the law and in the absence of proof, is it not as reasonable to suppose that the change was made with the consent of Tama Otis, as it is to infer that Merrill Otis committed forgery. If the change was made with her consent, she would be estopped from claiming title and so would her heirs. Potter v. Adams, 125 Mo. 118. The children under the constant care and companionship of their mother to the day of her death never heard of her having title to this land. They were informed and believed that their father owned the land. Now would not she and her heirs be estopped from asserting a claim adverse to one who acted on a belief created in this way and to which she was party, for according to Busby's testimony Tama Otis knew in 1866 that her husband, Merrill Otis, was claiming the land, and having occupied it as a homestead, until he conveyed it to his children in 1880, would not Stringer and Tama Otis be barred by the statute of limitations? (3) As plaintiff, Sarah Rumsey, in addition to her advancements, received $ 464.10 under Merrill Otis' will, we asked in our answer that in the event that plaintiff was permitted to recover, as she was insolvent, as well as a nonresident, that her liability on her father's warranty be determined, and her recovery stayed until such damages were paid. Section 8839, R. S. 1889; Foote v. Clark, 102 Mo. 394. While it is true that if in process of administration it becomes necessary to take legacies to pay debts, general legacies shall first be taken, this requirement, by its terms, contemplates that specific legacies may also be taken, but their liability is secondary. Yet when the money is gone, the administration closed, can plaintiff, while holding her legacy from Merrill Otis, compel us to give up this property, the title thereof being assured to us by her ancestor, said Merrill Otis? Is it the law that we must go out of court, hunt up the general legatees, sue them, and if we fail to collect from them by reason of insolvency, our right then accrues to sue plaintiff, who is also execution proof. If she wants the general legatees to pay damages she may bring them in. (4) Appellees on the trial and here insist that the admission of the deed, on behalf of appellants, from Stringer, showing on its face a conveyance to Merrill Otis as grantee, was error, being introduced as it was by appellants for the purpose of showing title in themselves by reason of the change in the name of the grantee. Woods v. Hildebrand, 46 Mo. 284. The deed on its face puts title in appellee's grantor. If appellants desired to falsify said deed they should have included a count in equity for that purpose with their straight count in ejectment. Thompson v. Lyon, 33 Mo. 219.
Less than three acres of land of the yearly rental value of $ 1.50 an acre is the bone of this contention. Plaintiff sues her brother, the defendant in ejectment, for an undivided one seventh of the south half of the southwest quarter of the southwest quarter of section 30, township 66, range 34, Nodaway county.
In 1864, Thomas Stringer, living in Illinois, owned this land in Nodaway county, Missouri. 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 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 eighty acre tract of land and the defendant received as a part of his eighty the twenty 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 eighty 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 twenty 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:
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