Shanklin v. McCracken
| Decision Date | 14 July 1899 |
| Parties | Shanklin v. McCracken et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Sullivan Circuit Court. -- Hon. W. W. Rucker, Judge.
Affirmed.
C. H S. Goodman and Hall & Hall for appellants.
(1) No particular form or ceremony was essential to constitute the delivery of the deeds from James McCracken and wife to John A. McCracken. It could be accomplished by acts or words or both. Crowder v. Searcy, 103 Mo. 97; Sneathen v Sneathen, 104 Mo. 201; Tyler v. Hall, 106 Mo 313; Rumsey v. Otis, 133 Mo. 85; Younge v. Guilbeau, 3 Wall. 636. (2) The delivery of the deeds could be made even though they were never in the hands of John A., but remained in the hands of James McCracken. Standiford v. Standiford, 97 Mo. 231; Crowder v. Searcy, 103 Mo. 97; Rumsey v. Otis, 133 Mo. 85; Cravens v. Rossiter, 116 Mo. 338. (3) Although James McCracken was in failing circumstances he had the right to convey his property to his father in payment of or to secure the father in preference to his other creditors, although such conveyance had the effect of hindering and delaying the other creditors. Ames v. Gilmore, 50 Mo. 537; Shelley v. Boothe, 73 Mo. 74; Dougherty v. Cooper, 77 Mo. 528; Sexton v. Anderson, 95 Mo. 373; Schroeder v. Bobbitt, 108 Mo. 289; Larrabee v. Bank, 114 Mo. 592; State ex rel. v. Purcell, 131 Mo. 312; Baker v. Harvey, 133 Mo. 653. (4) And the father had the right to take James' property as security for or in payment of his legal demands, though he knew James was insolvent and that the conveyance would hinder and delay his other creditors. State to use v. Distilling Co., 20 Mo.App. 21; Schroeder v. Mason, 25 Mo.App. 190; The Nelson Distilling Co. v. Creath, 45 Mo.App. 169; Hellman v. Bick, 55 Mo.App. 168; Tennent v. Rudy, 53 Mo.App. 196; State ex rel. v. Durant, 53 Mo.App. 493; Sexton v. Anderson, 95 Mo. 373; Shelley v. Boothe, 73 Mo. 74. (5) The conveyance was valid to the extent of the indebtedness due John A. McCracken. Columbia Savings Bank v. Winn, 132 Mo. 80.
A. W. Mullins and Harber & Knight for respondent.
(1) The evidence justified the circuit court in finding, as the court did find, that the deeds in question were not delivered. The delivery of a deed by the grantor and its acceptance by the grantee are acts as essential to the validity of the instrument as the signing; and, as long as it remains in the hands of the grantor, the title is still in the grantor, and no one can acquire title from the grantee. Tiedeman on Real Property, sec. 812; 2 Washburn on Real Prop. (2 Ed.) 602; Ebersole v. Rankin, 102 Mo. 488; Cravens v. Rossiter, 116 Mo. 338; Tyler v. Hall, 106 Mo. 313. The delivery of the deeds in question by James McCracken, the grantor, after the death of his father, John A. McCracken, the grantee, to the recorder for record, did not and could not validate said instrument. (See authorities cited above.) (2) Under the circumstances of this case, had the proof shown that said deeds, being absolute upon their face, but really intended as mortgages, were in fact delivered and accepted, yet such transfers of his property by James McCracken, so effected, are fraudulent and void as to Shanklin and Austin, as well also his other creditors, even if made for a valuable and ample consideration. Beidler v. Crane, 135 Ill. 98; Lukins v. Aird, 6 Wall 78; Molaska Mfg. Co. v. Steel & Walker, 36 Mo.App. 496; First National Bank v. Line Co., 43 Mo.App. 561; Cheney v. Palmer, 6 Cal. 122; Sims v. Gains, 64 Ala. 392; Winkley v. Hill, 9 N.H. 31; Lang v. Stockwell, 55 N.H. 563; Connelly v. Walker, 45 Pa. St. 449; King v. Cantrel, 4 Ind. 251; North v. Belden, 13 Conn. 376; McNeal v. Glenn, 4 Md. 87; State to use v. Bell, 2 Mo.App. 102; State to use v. Benoist, 37 Mo. 500; Donovan v. Dunning, 69 Mo. 436; Bank v. Haskins, 44 Mass. 332. (3) While the conclusions of facts drawn by trial court from the evidence in an equity case are not regarded by this court as conclusive, but subject to review, yet much deference is accorded such findings on account of the superior advantages they possess for weighing the evidence and judging of the credibility of the witnesses. Parker v. Roberts, 116 Mo. 667; Mathias v. O'Neill, 94 Mo. 520; Chouteau v. Allen, 70 Mo. 290; Sharp v. McPike, 62 Mo. 300.
OPINION
In Banc.
-- This case is here upon second appeal. Upon the first trial in the circuit court the plaintiffs obtained judgment, which was reversed by this court on appeal because of the exclusion by the circuit court of the testimony of Catherine McCracken, widow of John A. McCracken, as to the delivery of a deed to her husband by her son James McCracken. [140 Mo. 348, 41 S.W. 898.] On a trial anew in the circuit court the plaintiffs again had judgment and defendants appealed.
The facts briefly stated are these: On and prior to June 19th, 1888, James McCracken was heavily in debt. He owed his father, John A. McCracken, about $ 4,000 which was unsecured. He owed Shanklin & Austin, his bankers, about $ 5,000 which was secured, and about $ 6,000 which was unsecured. He was having serious trouble with his wife Laura, who threatened him with legal proceedings and with personal violence. It was deemed advisable to divest her of her dower interest in his property. Accordingly it was arranged that she should join him in conveying his property to some third person, and that he should join her in conveying 140 acres of land she owned in Sullivan county to some one else so as to cut out his interest in her property. W. E. Austin, of the banking firm of Shanklin & Austin, was his special friend and adviser, and E. M. Harber acted as his attorney, while John P. Butler acted as her attorney. Austin furnished the $ 700 which it was agreed he should pay his wife for relinquishing her dower in his land. It was discussed for quite a while as to who should be the grantee in the deed from him and his wife. Austin and Harber and Shanklin were suggested but were not selected as the grantee. After considerable delay John A. McCracken was agreed upon as the grantee, his name was inserted in the three deeds, which had been prepared previously and the deeds were left in the hands of James McCracken. John A. McCracken lived in the country, and knew nothing of the deeds at or before the time of the execution. James McCracken had a box in Shanklin & Austin's bank, in which he kept his deeds and other valuable papers, and John A. McCracken had an envelope in the same bank, where he kept his papers. There is testimony to show that James McCracken and Austin had previously discussed the former's financial condition and that it was contemplated that as soon as his wife's dower was divested, he should borrow money in the East, at a low rate of interest, so as to pay up his debts, including what he owed Shanklin & Austin. The testimony of all the witnesses, Austin, Harber, Butler, and James McCracken, who were present when the deeds were made shows beyond any reasonable doubt that the purpose in making the deeds was simply to divest the dower interest of the wife of James McCracken, and nothing whatever was said at that time (or before) about conveying the property to secure what James McCracken owed his father John A. McCracken. Immediately after the deeds were made they were placed in James McCracken's box in the bank.
None of the three deeds were recorded prior to September 4th, 1889, the day on which John A. McCracken died. One of them was filed for record on the 23d of August, 1890, and the other two on the 22d of December, 1890, the day on which the land was sold by the sheriff under the plaintiff's execution against James McCracken.
The defendants base their claim that the deeds were delivered to John A. McCracken, upon the testimony of James McCracken, his mother Catherine McCracken, and his sister Mattie McCracken.
James McCracken testified that after the deeds were executed he carried them to his father's residence in the country and there delivered them to him, and that his father handed them back to him and told him to put them where they would be safe, and that the next day he took them back to the bank and placed them in his (James') box in the bank, where they remained until August, 1890, when, by direction of his brother, who was the administrator of his father's estate, he, James, took them out of the box and had one of them recorded. It appears however from a deposition of James McCracken, which had been taken in the early stages of this litigation, that he said then, that it was not the intention when the deeds were made that they were to be delivered to his father. Catherine McCracken testified that her son James brought two deeds to their residence in the country and gave them to her husband John A. McCracken, while he was standing by the well; that she did not read the whole of the deeds but did read enough of them to see that they were from "Jim and his wife" to her husband; that Jim stayed all night and she saw something like deeds in some of his clothing which was lying on the bed; that she could not remember what her husband did with them after her son gave them to him. Mattie McCracken testified that she was not at home the day James brought the papers, but that the next morning when she was cleaning up the room in which James had slept the night before, she picked up his coat off the carpet; that "the papers were a little bit slipped out of the coat;" that her mother was present and wanted to examine the papers, but she said them were Jim's; that when her mother "slipped them part of the way out I saw they were the size of deeds," but sh...
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