Thummel v. Holden
| Decision Date | 23 May 1899 |
| Citation | 149 Mo. 677,51 S.W. 404 |
| Parties | THUMMEL v. HOLDEN. |
| Court | Missouri Supreme Court |
1. Defendant claimed title by a warranty deed made by plaintiff's mother to defendant's grantor. The name of the grantee was left blank in the deed, with authority to L. to fill in the name of such grantee as he might elect. L.'s agent, by mistake, inserted the name of F., instead of the name of defendant's grantor, as intended, but upon discovery of the mistake the name of defendant's grantor was immediately inserted. Held, that the momentary insertion of the name of F. by mistake, being without authority either from plaintiff's mother or L., conferred no title upon F., and detracted nothing from the rights of defendant's grantor, but the insertion of the name of defendant's grantor for the first time made the instrument complete.
2. In ejectment, plaintiff claimed title by a quitclaim deed from his mother, made subsequent to a warranty deed made by her to defendant's grantor, both deeds being made subject to the same incumbrances. Held that, as the defendant's legal title only was in issue, an answer alleging that he had discharged the incumbrances, that the deed to plaintiff was without consideration, was made for the purpose of defrauding defendant, and was a cloud upon his title, afforded no grounds for equitable relief.
Appeal from St. Louis circuit court; James E. Withrow, Judge.
Ejectment by Walter C. Thummel against Randall L. Holden. There was judgment for defendant, and plaintiff appeals. Reversed.
Eber Peacock, for appellant. Joseph T. Tatum, for respondent.
This is an action in ejectment to recover a certain lot in block 2,293, in the city of St. Louis, described by metes and bounds in the petition. The petition is in common form. Mary L. G. Thummel, the mother of the plaintiff, is the common source of title. Plaintiff claimed title by a quitclaim deed from her dated October 10, 1894, and recorded October 16, 1894. The defendant claimed title under a warranty deed from her to George L. Taylor dated April 24, 1894, and recorded September 17, 1894, by deed from said Taylor to him dated September 12, 1894, and recorded October 30, 1894. The deed of Mrs. Thummel to Taylor was made "subject to a certain deed of trust to Joseph Dormitzer's trustee of $3,600, together with interest at the rate of 6 per cent. from date hereof, due November 20, 1894, also subject to another deed of trust to the Allemania Building & Loan Association, trustee, dated October 23, 1891, recorded in Book 1,041, page 406," and the quitclaim deed of Mrs. Thummel to the plaintiff was also made subject to the same incumbrances, and contained this further recital, to-wit, "And this conveyance is further made by said grantor with this declaration, that a certain deed purporting to have been executed by said grantor dated April, 1894, to one G. L. Taylor, and recorded in Book 1,230, page 211, of the recorder's office of the city of St. Louis, is absolutely void, and of no effect, as this grantor had no transaction with, or ever did make or deliver any deed to, said Taylor for said property." The deed from Taylor to the defendant was made subject to the same incumbrances. The answer of defendant admitted possession of the premises; denied the other allegations of the petition; gave a history of the deeds from Mrs. Thummel to Taylor and the plaintiff; averred that he had paid off and discharged the incumbrances, that the deed from Mrs. Thummel to the plaintiff was without consideration, made for the purpose of defrauding the defendant, and was a cloud upon his title; and prayed that the same be decreed to be void, that the title to the property be vested in him, and that plaintiff and those claiming under him be forever enjoined from asserting title, and for general relief. Issue upon the new matter set up in the answer was joined by reply. At the trial a jury was waived, and the whole case submitted to the court. The court found the issues on the petition, and on the cross bill set up in the answer for the defendant granted the relief prayed for, and plaintiff appealed. The undisputed facts disclosed by the evidence are: That in the spring of 1894 one Lee S. Holden was engaged in business as a real-estate agent in the city of St. Louis, having in his office a scrivener by the name of Pritchard, in whose name it was his custom to keep the titles of some of his principals. That on the 24th of April, 1894, a trade between him and Mrs. Thummel having been negotiated, by which she was to exchange the lot in question, called the "Cook Avenue Lot," for a lot in Forest...
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