Schooler v. Schooler
| Decision Date | 20 May 1914 |
| Parties | LUTHER S. SCHOOLER, ALTIE MIRA ANN YOAKUM and MARTHA ADALINE COWSERT, Appellants, v. WILLIAM NATHANIEL SCHOOLER et al |
| Court | Missouri Supreme Court |
Appeal from Ray Circuit Court. -- Hon. Francis H. Trimble, Judge.
STATEMENT.
The two daughters and son and only heirs of Nathaniel A. Schooler deceased, sued two of his grandchildren, being the children of the plaintiff Martha Cowsert, to quiet title to about 85 acres of land. The petition contained a second count (dismissed on the trial) which sought to set aside and annul a deed conveying the land in question to another daughter of Nathaniel A. Schooler, plaintiff Altie Yoakum, for life, with remainder in fee to two of the children of the other daughter, on the ground that it had not been delivered by the grantor, Nathaniel A. Schooler, Sr., in his life time. Mrs Yoakum, the life tenant in this deed, though married, was childless. Her sister, Mrs. Cowsert, the life tenant in the other deed, was married, and the two defendants to this suit were born of her first marriage and were remaindermen in the deed to Mrs. Yoakum.
The defendants pleaded title under said deed in their answer and prayed that the interest and estate of the parties be adjudged according to the terms of the deed. A jury was waived and the case submitted to the courts upon the evidence which disclosed that Nathaniel A. Schooler, Sr., was the father of the three plaintiffs; that in the fall of 1905, in company with the husband of one of his daughters, he called upon a firm of lawyers in Richmond, Missouri, and instructed them to prepare a deed and abstract of title to the land in dispute in this case, to his daughter Mrs. Yoakum, for life with remainder in fee to the two children of his daughter Mrs. Cowsert, who were born of her first marriage, and a similar deed, to other land of about the same quantity, to his daughter, Mrs. Cowsert, with remainder in fee to her children, three in number, born of both marriages; that as to the land embraced in the last deed these plaintiffs have brought against the remaindermen a similar action to the present; that in accordance to such instructions the two deeds were prepared; that on the 23rd of October, 1905, the said Schooler returned to the office of his attorneys and signed and acknowledged both deeds; that each was then enclosed in a large envelope which was sealed up and delivered to him with a superscription on each, to-wit "Deed and Abstract from Nathaniel A. Schooler to [naming the grantee]"; that he remarked on leaving the office that he was "not going to turn over the deeds to his daughters at once," whereupon his attorney advised him that in order to make the deeds effective they must be delivered to the grantees, or if they were placed in the hands of a third party for the grantees, such party should be notified, that he, Schooler, had no further control of them, and that they were the deeds of his daughters; thereupon, Nathaniel A. Schooler took the deeds and handed them to the cashier of the banking house who placed them in a safety box belonging to the bank, and which was generally used for keeping papers left there; it was not the private box of Mr. Schooler.
At the time the deeds were put in the hands of the cashier a statement in regard to them was made by Mr. Schooler, but the cashier testified that he could not recollect either the words or the substance of it. On that point the following questions were put to him by the court to which he answered as follows:
Mr. Schooler then went to his home about twelve miles from the town, and thereafter the two tracts of land described in the two deeds made by him to his daughters, were taken possession of by them or by their husbands on their behalf, and were fenced off from each other and also fenced off from the remainder of their father's land, which consisted of about 113 acres. For the years following each of the said daughters caused the property described in their respective deeds to be assessed in their own names and the taxes were paid, and the crops grown thereon were sold by the daughters, and the money received by them or their husbands.
Their father died in December, 1908, whereupon his two daughters together called upon the cashier of the bank where their deeds had been left, and, he being absent, they requested his assistant to deliver the deeds to them, which was done. During the afternoon of the same day the cashier of the bank, being advised of what was done, secured the return of the deeds to himself.
The evidence goes to show that when the assessor came out to the farm of Nathaniel A. Schooler, he returned for assessment only that portion of his land which he had not conveyed to his daughters, and asked the assessor if he had gotten the statement from "the girls of their property," and suggested that he, the assessor, recite the calls of the land given to him by the daughters, which was done, and which Nathaniel A. Schooler said was correct. There was other testimony that during his life time he had stated that he had made the gift of land to his daughters in order to make them equal to their brother, for whom he had been compelled to pay fines; and that he made the gifts of the remainder under the present deed to two of his grandchildren, because he wanted to do something for them in consideration for what they had done for him, by remaining at his house until they reached their majority, after their mother had left her first husband, who was their father; that he spoke to certain persons about these gifts of land to his two daughters, and gave his reasons, that he caused a house to be built on one of the tracts and said that he intended to give it to the daughter to whom the land had been conveyed; that he said the deeds "ought to be handed over, but did not say when they would be handed over;" that plaintiff, Mrs. Cowsert, stated that she knew the deed to her sister had been "fixed" by her father so that her sister's husband could not spend it.
Shortly after the two daughters returned the deeds to the cashier of the bank, they and their brother joined in the present action. After taking the case under advisement, the learned judge made a finding in favor of the grandchildren which sustained the life estate to plaintiff, Mrs. Yoakum, with a remainder in fee to defendants. From a judgment in accordance, the mother of the defendants, and her sister and brother, have prosecuted this appeal.
Affirmed.
Farris & Divelbiss for appellants.
(1) Without delivery, a deed passes no title. Chambers v Chambers, 127 S.W. 86. (2) While a valid delivery may be made by delivering a deed to a stranger with instructions to deliver it to the grantee, still to make such delivery effectual, it must affirmatively appear that the grantor at the time he delivered the deed to the depositary, parted with all dominion and control over it, and relinquished all right to alter or recall it, intending at the time to pass the title as a present transfer. Hammershlough v Cheatham, 84 Mo. 13; Sneathen v. Sneathen, 104 Mo. 201; White v. Pollock, 117 Mo. 472; In re Soulard's Estate, 141 Mo. 642; Powell v. Banks, 146 Mo. 620; Mudd v. Dillon, 166 Mo. 110; McNear v. Williamson, 166 Mo. 358; Peters v. Berkheimer, 184 Mo. 393; Lange v. Cullinan, 205 Ill. 365. (3) The question whether the grantor parted with all dominion and control over the deed at the time of the delivery to the third person is to be determined by reference to his intention, which is to be ascertained from the facts and circumstances attending the execution of the deed and its delivery to the third person. Lange v. Cullinan, 205 Ill. 365. (4) Subsequent acts and declarations of the grantor showing an intent or desire to give the land to the grantee do not establish that he did give it to them by the execution and delivery of a deed of conveyance, without which no title could pass. Walls v. Ritter, 180 Ill. 616; Lange v. Cullinan, 205 Ill. 365. (5) The deed must have been put into the hands of the third person under such circumstances as to make it the duty of the latter to refuse to surrender it to the grantor, if he should afterwards call for it. Mudd v. Dillon, 166 Mo. 110; Osborne v. Eslinger, 155 Ind. 351; Emmons v. Harding, 162 Ind. 154. (6) If the grantor deposits the deed with a third party as his agent, friend or bailee, or simply for safe keeping, there is no delivery. Barrows v. Barrows, 138 Ill. 649; Osborne v. Eslinger, 155 Ind. 351. (7) The mere leaving of a deed by the grantor with a third person without instructions as to what he desires to be done with it, does not amount to a delivery. The law does not presume, when a deed is handed to a third person, that it is done with the intention of passing the title to the grantee. In order to make such act a delivery, the intention of the grantor must be expressed at the time in some unmistakable manner. Fitzpatrick v. Brigman, 130 Ala. 450; Trask v. Trask, 90 Iowa 318; Grilly v. Atkins, 78 Conn. 380; McElroy v. Hiner, 133 Ill. 156. (8) To make the delivery to a stranger effectual, the intention with which the delivery was made must be expressed at the time. Co. Lit. 36a; Touch. 57; Tiedman, Real Prop. (2 Ed.), sec. 814; 3 Wash. Real Prop. (5 Ed.), p. 314, sec. 582; 1 Dev. on Deeds (2 Ed.), sec. 289; Jackson v. Rowland, 6 Wend. 666; Hannah v. Swarner, 8 Watts, 9; Hulick v. Scovil, 4...
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