Schooler v. Schooler

• Decision Date: 20 May 1914
• Docket Number: No. 16151.,16151.
• Citation: 258 Mo. 83,167 S.W. 444
• Parties: SCHOOLER et al. v. SCHOOLER et al.
• Court: Missouri Supreme Court

167 S.W. 444

258 Mo. 83

SCHOOLER et al. v. SCHOOLER et al.

No. 16151.

Supreme Court of Missouri.

May 20, 1914.

1. DEEDS (§§ 54, 64)—DELIVERY AND ACCEPTANCE—NECESSITY.

The delivery of a deed by the grantor and its acceptance by the grantee is essential to its validity.

2. DEEDS (§ 208)—DELIVERY—ACTS CONSTITUTING.

The delivery of a deed and its acceptance may be established by indirect or inferential evidence.

3. DEEDS (§ 194)—DELIVERY—ACCEPTANCE—PRESUMPTIONS.

The presumption of the delivery of a deed and its acceptance in case of voluntary settlement is stronger than in case of bargain and sale.

4. DEEDS (§ 208) — DELIVERY — EVIDENCE—SUFFICIENCY.

Evidence held to sustain a finding of a delivery of a deed to a third person for delivery to the grantee.

5. DEEDS (§ 58)—DELIVERY—EVIDENCE—SUFFICIENCY.

A deed delivered by the grantor to a third person for delivery to the grantee, and the delivery by the third person to the grantee, is a good delivery, though the grantor is dead at the date of the delivery to the grantee, for the delivery takes effect when first made to the third person.

6. DEEDS (§ 208)—DELIVERY—ACCEPTANCE—EVIDENCE.

Evidence held to sustain a finding that a grantee accepted the delivery of a deed so as to take title thereunder.

7. EVIDENCE (§ 76)—PRESUMPTIONS—FAILURE OF PARTY TO TESTIFY.

Where a party in a civil case can give testimony exonerating himself from a rational inference of inequitable conduct, but refuses to do so, the conclusion of his guilt of inequitable conduct and his inability to dispute it may be drawn.

Lamm, C. J., and Woodson and Walker, JJ., dissent.

In Banc. Appeal from Circuit Court, Ray County; Francis H. Trimble, Judge.

Action by Luther S. Schooler and others against William Nathaniel Schooler and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

The following is the opinion of BOND, J., in division:

Statement by the Court.

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 lifetime. 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, Mo., 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 23d of October, 1905, the said Schooler returned to the office of his attorneys and signed and acknowledged both deeds; that they were then inclosed 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:

"By the Court (continuing): Q. And you don't recollect a solitary thing he said? A. No, sir, he handed me the papers, but I don't recollect what he said. Q. He made some statement to you, but you don't know what it was? A. No, sir; we get so many of these papers that I did not impress my mind what he said. Q. You were not the agent for Mr. Schooler for any purpose, were you? A. No."

Mr. Schooler then went to his home about 12 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 lifetime 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 he 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.

Opinion.

I. In this case both parties have a common source of title, the father of the plaintiffs and the...