Scott v. Scott

• Decision Date: 07 May 1888
• Citation: 8 S.W. 161,95 Mo. 300
• Parties: SCOTT et al. v. SCOTT.
• Court: Missouri Supreme Court

8 S.W. 161

95 Mo. 300

SCOTT et al. v. SCOTT.

Supreme Court of Missouri.

May 7, 1888.

DEED — DELIVERY — PROOF OF.

When it appears, in an action to annul a deed, that the deed was not recorded till after the death of the grantor, and that both grantor and grantee had made declarations inconsistent with its delivery, the presumption of delivery arising from possession of the deed will not be supported by the mere fact that the grantee received by mail an envelope, addressed in his own handwriting, in which the deed was contained when filed for record.¹

Appeal from circuit court, Nodaway county; H. S. KELLEY, Judge.

This was an action by Eleanor Scott, William B. Scott, Ella B. Scott, Nannie M. Scott, and Mattie E. Scott, against David A. Scott, to cancel a deed executed by Maggie R. Scott to defendant. Judgment for defendant, and plaintiffs appeal.

T. J. Johnston, for appellants. Edwards Ellison, and W. W. Ramsay, for respondent.

NORTON, C. J.

This is a proceeding in equity instituted in the circuit court of Nodaway county to vacate and annul a certain deed purporting to have been executed on the 23d of April, 1883, by Maggie R. Scott, conveying to defendant certain lands in the counties of Nodaway and Vernon, in this state, and other lands in the states of Ohio and Nebraska, and also all the personal property of said Maggie, which said deed was filed for record in the recorder's office in Nodaway county on the 17th day of September, 1883. On the trial of the cause the court rendered judgment for defendant, from which plaintiffs have appealed. The grounds set up in the petition for vacating this deed are substantially as follows: First, that the deed was never delivered to defendant; second, that said Maggie R. Scott did not make the deed in the form in which it now appears, and in which it was recorded; third, that, in whatever form said deed was executed by said Maggie, if executed by her at all, it was procured to be executed by fraud and undue influence on the part of defendant, exerted by him over her in consequence of confidential relations existing between them. The deed sought to be vacated conveyed to defendant, "for and in consideration of the sum of being provided for during her natural life as she desires, affection, and other very valuable considerations to her in hand paid by the party of the second part, the receipt of which is acknowledged," all the real and personal estate of said Maggie. It is dated the 23d of April, 1883, and has appended to it a certificate of acknowledgment of the same date, taken by Robert Baird, notary public, and is attested by said notary and W. E. Baird. It is admitted by the answer that all of the written part of said deed, except the signatures of said Maggie, the notary, and W. E. Baird, is in the handwriting of defendant. The evidence of the notary and attesting witness sufficiently prove the execution of the deed, and its acknowledgment before the notary. W. E. Baird testified that he was requested by said Maggie to witness the deed; that he never read it or heard it read, nor were the contents of the deed stated to him further than that it was a deed from Maggie R. Scott to David A. Scott; that he could not say whether the deed was filled out or not; that he did not look at it, — only when his signature was to be written; that said Maggie took the deed away with her. Robert E. Baird, the notary, testified that he took the acknowledgment of this deed, and also of another one a month or two before; that one of these deeds was handed by said Maggie to Scott in the hall, and his impression was that it was the last one acknowledged. This deed, so far as the fact is disclosed by the evidence, from the time it was executed and acknowledged, and handed by the notary to said Maggie, does not again appear till the 17th day of September, 1883, two days after the death of said Maggie, when it was given by defendant to one McMillan to be filed for record, and was by him on said day filed for record in the recorder's office of Nodaway county. Mr. Noel, the recorder, testified that, at the time the deed was filed, his attention was called to it, and he thought it was not all written at the same time; that there was at that time about three shades of ink; the ink in the descriptive part was lighter; the lower part of the description was lighter than the balance of it, — newer written; that the ink was more nearly alike when he testified than when it was filed for record.

Where a deed has been executed and acknowledged, the possession of it by the grantee is presumptive evidence of its delivery. Yarnall v. Yarnall, 6 Mo. 325. It is affirmed in the case of Huey v. Huey, 65 Mo. 689, that the lodgment of a deed, properly executed and acknowledged, by the grantor, in a place to which the grantee has access, and from which he can, without hinderance, transfer it to his own possession, with the intent on the part of the grantor that the grantee may, after his death, take it, and have it recorded, does not constitute delivery of the deed.

The first question to be considered is, do the facts in evidence overcome the presumption, arising from defendant's possession of the deed, that it was delivered. As preliminary to the discussion of this question, it is proper to state the relations the various parties sustained to each other. It appears that Alexander F. Scott died in 1865, in Harrison county, Ohio, the owner of a large amount of real and other estate, leaving said Maggie R. Scott, his widow, Eleanor, one of the plaintiffs, and the other plaintiffs in this suit, as his heirs; that defendant is the cousin of said Maggie, and commenced boarding in 1868 with the family of said Eleanor while going to school; that he assumed to act for said Eleanor as her agent in some matters pertaining to the estate of said Alexander, — induced her to sell some of the lands, and convey other lands to said Maggie; that he was authorized to sell certain lands in Vernon county, this state, at $9 per acre, and was to receive $1 per acre for making sale; that he sold the land for $12.50 per acre, and accounted for it at $9 per acre, and kept the balance. The evidence tended to show that Maggie was engaged to be married, in 1871 or 1872, to Roy Workman; that this engagement was broken off by the influence of defendant; that defendant's attentions to Maggie were displeasing to her mother, who some time thereafter, about 1876, refused longer to board him, and ordered him away; that Maggie, in January, 1878, left her mother's, and went to live with Samuel Scott, who lived 25 miles distant, and was her uncle and the father of defendant; that she returned to her mother's in the summer of 1881, and remained a week or two; returned again in the fall of 1881, and remained till May, 1882, and her last visit was in June, 1883. The evidence also tended to show that defendant acted as the agent of said Maggie in transacting her business, and in some instances as her attorney, and that he had full possession of her confidence. The facts disclosed by the following evidence are relied upon to overcome the presumption, raised by defendant's possession of the deed, that it was delivered. Lamon Scott testified as follows: "In May, 1883, after David A. returned from Ohio, I had a talk with him. Before this I had written a letter to Maggie about the partition of the lands in Vernon county. I met David on the street in Maryville, and asked him what Maggie wanted to do about the division of the land in Vernon county, and he said he intended to let her do as she pleased, as my mother had blamed him for meddling, and he would have nothing to do with it, and he did not know what Maggie intended to do about it." The letter of this witness was replied to on the 14th May, 1883, by said Maggie, as follows: "Your letter of recent date at hand, and contents noted. I think the remaining lands ought to be divided, but in which of the two ways I scarcely know. It may not cost so much for to settle up by each of us making quitclaim deeds to each other; but would it be quite as satisfactory a way of doing business as to partition it through court?" The following letter of said Maggie, written to defendant, was also in evidence:

                                "E. SPRINGFIELD, JEFFERSON CO., OHIO, July 15, 1883
                

"Dearest Cousin: Your letter of the 10th containing P. O. order at hand. If you think I had better start west without having my dresses fixed, I suppose about next Tuesday or Wednesday (24th or 25th) would be about as well as any time this month; cannot, at least, hear from you, and get ready earlier than this. If not at this time, I would prefer waiting until about the 6th of next month, as I do not care about traveling between the above-mentioned times. If we are to be married, you may meet me. If not, I would just as leave go alone. Can't you make it suit to meet me in St. Louis? Write me full instructions, — what time to leave here, and what train to take; and, if you are to meet me, I would rather you would be at the place named in advance of me, as I do not want to wait. Shall I pack my box, and have it taken to the station when I go, and shipped as freight, and what shall I do with Nellie's squirrel? I have never got any cage for her. Please answer me fully everything I ask you. * * * Hoping to hear from you right away,

                I will close,                                    As ever,        M
                

"Be sure, and write me full instructions."

Another letter of hers, dated July 28, 1883, was also read in evidence. So much of which as bears upon the questions involved is as follows: "Your letter of the 25th, containing instructions, came to hand last evening. I have nothing of importance to write you. I am afraid I will not have money enough. Do not think I will have my box shipped, as I want to have some money over and above what gets my ticket, but will pack it, and have it ready to go at any future time. If nothing happens to hinder me,...