Scott v. Scott

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

8 S.W. 161

95 Mo. 300

Scott et al., Appellants, v. Scott

Supreme Court of Missouri

May 7, 1888

Appeal from Nodaway Circuit Court. -- Hon. H. S. Kelley, Judge.

Reversed and remanded.

T. J Johnston for appellants.

(1) There was not sufficient evidence in the circumstances of this case to prove the delivery of the deed. Nor did the grantor, Maggie R. Scott, make it in the form in which it now appears and in which it was recorded. Under ordinary circumstances, after proof of the execution of a deed, the delivery will be presumed from the possession of it by the grantee. 2 Greenl. Evid. [Redf. Ed.] sec. 297; Yarnall's Adm'r v. Yarnall, 6 Mo. 326-9. But such presumption may be rebutted by showing that such deed was not, in fact, delivered; or that it was obtained surreptitiously by the grantee. Huey v. Huey, 65 Mo 689; 2 Greenl. Evid. [Redf. Ed.] sec. 300. And the situation of the parties, the relationship existing between them, and the circumstances attending its execution may be such as to shift the burden of proof of delivery, and require the grantee in possession of the deed to show delivery to him either actual or constructive. Yarnall v. Yarnall, 6 Mo. 329; Garvin's Adm'r v. Williams, 44 Mo 465; 2 Pom. Eq., secs. 955-6, and note 1; Street v. Gross, 62 Mo. 226-8-9. The delivery of a deed may be made by the grantor saying and doing something, or by saying something and doing nothing; or by doing something and saying nothing; but in order to the transmission of the title there must be a delivery; and, in the circumstances of this case, the burden of showing delivery of the deed of the twenty-third of April, 1883, devolved on the defendant. If the deed had, in fact, been delivered, it is very probable there would have been no trouble in showing it; but where the circumstances of the whole transaction are suspicious, and out of the ordinary mode of transacting such business, it may be a matter of some difficulty to prove the delivery, but that fact should not relieve the party claiming under it of the burden. Upon the issue of delivery or no delivery, we say, that notwithstanding the presumption arising in favor of the delivery from the possession of the deed by the grantee, yet the record in this case furnishes abundant proof to overcome any such presumption. (a) It is very improbable that Maggie R. Scott, in her right mind, would voluntarily give up to another a valuable estate, worth perhaps twenty thousand dollars, upon the bare promise of support, without reservation or control, and without security for the performance. (b) If she actually made the deed and delivered it with the intention of vesting the title in the defendant absolutely, she would have known it, and known that she was no longer owner of it, and would have acted accordingly. (c) If the deed had been in fact delivered to defendant, for the purpose of vesting in him the title to the property, he would have known it and acted accordingly. This, upon the supposition that everything was fair and right, with no suspicious circumstances attending it. (2) In whatever form the deed was executed by Maggie R. Scott, if executed by her at all, it was procured by fraud and undue influence on the part of the defendant, exercised by him over her in consequence of the confidential relations existing between them.

Edwards & Ellison for respondent.

(1) As the case at bar is one in chancery, this court has the undoubted right to examine and pass upon the testimony anew. But where much of the evidence bearing upon the material issues was given orally in the trial court, as in this case, this court will defer greatly to the trial court as to the finding of the facts and will be extremely reluctant, where the evidence is conflicting, to disturb such finding. Gimbell v. Pignero, 62 Mo. 240; Sharpe v. McPike, 62 Mo. 300; Boyle v. Jones, 78 Mo. 403; Hendricks v. Woods, 79 Mo. 590; Ford v. Phillips, 83 Mo. 523; Snell v. Harrison, 83 Mo. 651; Bank v. Murray, 88 Mo. 38; Chapman v. McIlwrath, 77 Mo. 38; Judy v. Bank, 81 Mo. 404; Bushong v. Taylor, 82 Mo. 660. (2) The testimony is conclusive in this case that the consideration referred to in the deed of Maggie R. Scott to David A. Scott, dated April 23, 1883, to-wit, "That the said party of the first part (Maggie R. Scott), 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 said party of the second part (David A. Scott), the receipt whereof is hereby acknowledged," refers in no ambiguous terms to the contract of marriage then existing between them. Their long acquaintance with, attachment and affection for, each other; the letters of Maggie R. Scott of July 15 and 28, 1883; her repeatedly expressed wish and persistent purpose, uninfluenced by others, on her sick bed, to marry David A. Scott; the conceded fact, well and long understood by her brothers, that they would some time marry; the actual consummation of the agreement by their marriage, with all due solemnity, without secrecy, at the request of Maggie herself, in the presence of her brothers and many others, without objection, by a minister in high standing, establish beyond controversy, the meaning of that clause in the deed as interpreted by the parties themselves. This being so, the authorities supply a long list of decisions, both in this country and England, that the promise of marriage is the most favored and valuable consideration in the eye of the law to support a deed founded upon such promise, that the grantee in such deed is viewed in the light of a purchaser for value, and there is no instance in the books where his title has been disturbed after the marriage. Lionberger v. Baker, 88 Mo. 447; Smith v. Allen, 5 Allen [Mass.] 458; Bunnell v. Witherow, 29 Ind. 123; Sterry v. Arden, 1 Johns. Ch. 261; Verplank v. Sterry, 12 Johns. 536; Rockafelow v. Newcomb, 57 Ill. 186; 4 Kent [11 Ed.] 464, top p. 540; Wood v. Jackson, 8 Wend. 9-33; 2 Sugden on Vendors, 469; Prewitt v. Wilson, 103 U.S. 22; Otis v. Spencer, 102 Ill. 22, 30; Gurwin v. Cromartie, 11 Ired. [N. C.]; Chandler v. Temple, 4 Cush. 285; Kelley on Contracts of Married Women, 25; McCaw v. Burk, 31 Ind. 56; Douglass v. Waad, 1 Ch. Cas. [Eng.] 99; Brown v. Jones, 1 Atk. [Eng. Ch.] 188; Herring v. Wickham, 29 Grat. [Va.] 628; Anderson v. Green, 7 J. J. Marsh. 448. (3) The deed in controversy was shown by the evidence of the attesting witness, W. E. Baird, to have been duly signed and acknowledged by Maggie R. Scott. The certificate is in proper form. The notary, Robert Baird, deposes that it was filled out when acknowledged and conveyed lands in Missouri. The envelope, identified by John Milone, postmaster at Urichsville, O., as stamped with the receiving stamp of his office at 8 o'clock a. m., April 26, 1883, was stamped with two three-cent postage stamps. He testified it came to his office from some other office in Ohio where it had been mailed. This envelope, as I. V. McMillan testified, enclosed the deed when the same was delivered to him September 17, 1883. The theory that this deed was acknowledged in blank, or that it was abstracted by David A. Scott from the trunk of Maggie R. Scott while she lay sick at the Luona hotel, is wholly unsupported by any evidence in the case, and is a mere figment of the imagination of counsel for appellants. This deed being found in the hands of the grantee, executed in due form, the clearest evidence would be required to overcome the presumption of its delivery, if there was no other evidence to show the delivery. Reed v. Douthit, 62 Ill. 348; Brittain v. Work, 14 N.W. 421; Benson v. Wolverson, 2 McCart. (15 N. J.) 158; Simmons v. Simmons, 78 Ala. 65; Tunison v. Chamblin, 88 Ill. 78; Souverbye v. Arden, 1 Johns. Ch. 239; Chandler v. Temple, 4 Cush. 285; Cutts v. York Co., 18 Maine, 190; Canning v. Pinkham, 1 N.H. 353; Ward v. Ross, 1 Stewart's Rep. (Ala.) 136; Ward v. Lewis, 4 Pick. 518. (4) The charge in the petition that David A. Scott was the attorney and confidential adviser of Maggie R. Scott, and that she was under his power and influence, has no support in the evidence.

W. W. Ramsey also for respondent.

(1) The trial court found that the deed was legally executed and delivered, and in so finding it was supported by the law and the evidence. "The possession of a deed by the grantee or obligee, is, in the absence of opposing circumstances prima-facie evidence of delivery." 2 Greenl. Evid. [7 Ed.] sec. 297; Ward v. Lewis, 4 Pick. 518; Maynard v. Maynard, 10 Mass. 456; Berry v. Anderson, 22 Ind. 36; Dawson's Adm'r v. Hallett, 2 Mich. 390; Johnson v. Moore, 28 Mich. 3; Sawyer v. Warren, 15 Barb. 282; Whitaker v. Salsbury, 15 Pick. 534; Jackson v. Perkins, 2 Wend. 308; Henry County v. Bradshaw, 20 Iowa 355. When a deed, duly executed, is found in the hands of a grantee, there is a strong implication that it has been delivered, and only clear and convincing evidence can overcome the presumption. Otherwise titles could be easily defeated, and no one could be regarded as being secure in the ownership of land. Tunison v. Chamblin, 88 Ill. 378, loc. cit. 387. (2) The acknowledgment certified to by the notary, was prima-facie evidence that the deed was executed as recited in the certificate. Wannell v. Kem, 37 Mo. 478; Sharpe v. McPike, 62 Mo. 300; Brocking v. Stratt, 17 Mo.App. 304. (3) The appellants having alleged fraud and forgery, the onus was upon them to establish such allegations, and not upon the respondent to disprove them. 1 Greenl. Evid. [9 Ed.] sec. 74; Bank v. Baldenwick, 45 Ill. 375; Stewart v. Ashley, 34 Mich. 183; Danling v. Hurst, 39 Mich. 765; Parker v. Pierce, 16 Iowa 227. (4) The evidence fails wholly to support the charge that the deed was...