Tobin v. Bass

• Decision Date: 30 April 1885
• Parties: TOBIN v. BASS et al., Appellants.
• Court: Missouri Supreme Court

85 Mo. 654

TOBIN

v.BASS et al., Appellants.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Schuyler Circuit Court.--HON. ANDREW ELLISON, Judge.

REVERSED.

Higbee & Raley for appellants.

There was a sufficient delivery of the deed to the children of the plaintiff. Lumber v. Anderson, 13 Mo. App. 434; Mayor v. Hill, 13 Mo. 250; Gorman v. Stanton, 5 Mo. App. 585; Dale v. Lincoln, 62 Ill. 24; Palmer v. Palmer, 18 C. L. J. 78; Long v. Joplin Mining Co., 68 Mo. 432; Cecil v. Beaver, 28 Ia. 241; Adams v. Adams, 21 Wall. 185; McPherson v. Featherstone, 37 Wis. 641; Masterson v. Cheek, 23 Ill. 76; Devoise v. Snyder, 60 Mo. 240; Huey v. Huey, 60 Mo. 694; Gould v. Day, 94 U. S. 412; Burke v. Adams, 80 Mo. 504.

Shelton & Dysart and C. C. Fogle for respondent.

(1) The making and recording of the deed to appellants, by respondent and her husband, in 1849, only raises a prima facie presumption of delivery, and this presumption is rebutted by the countervailing facts and circumstances in the case. Younge v. Gilbeau, 3 Wallace, 636; Parmlee v. Simpson, 5 Wallace, 81; Knolls v. Barnhart, 71 N. Y. 474; Hawkes v. Pike, 105 Mass. 560; Jackson v. Phipps, 12 Johnson, 418; Yarnall v. Yarnall, 6 Mo. 175; Martindale on Conveyancing, sec. 212; Maynard v. Maynard, 10 Mass. 455; Creed v. Lancaster Bk., 1 Ohio 9, 10; Cummings v. Bramhall, 120 Mass. 564; Shortliff v. Francis, 118 Mass. 154. (2) The evidence abundantly shows that there was no delivery of the deed in controversy either prior or since the death of Geo. Tobin, respondent's husband, and under the facts in the case, the evidence failing to show a delivery to a third party for the use of appellants, there could be none after the death of one of the grantors. Huey v Huey, 65 Mo. 689; Martindale Con. sec. 211. (3) And the presumption that deeds by parents to minor children, or deeds generally to idiots, lunatics and married women, and assignments for the benefit of creditors, from their beneficial character, are accepted by the grantees when found executed and recorded, as in this case, is only prima facie, and may be overthrown by countervailing circumstances. Hawkes v. Pike, 105 Mass. 560; Yarnall v. Yarnall, 6 Mo. 175; Tomkins v. Wheeler, 16 Peters, side p. 119; Martindale on Conveyancing, sec. 214; Burke v. Adams, 80 Mo. 504; Maynard v. Maynard, 10 Mass. 455; Creed v. Lancaster Bk., 1 Ohio, 9, 10; Cummings v. Bramhall, 120 Mass. 564; Shortliff v. Francis, 118 Mass. 154. (4) There must have been a mutual concurrence of action at some time or other, between grantors and grantees, on the faith of a deed before a delivery can be said to have taken place. And in the case at bar the evidence shows conclusively that the grantees had no knowledge of the existence of the deed in controversy, until the institution of this suit, thirty-three years after the execution of the deed. Gould v. Day, 94 U. S. 405; Jackson v. Cleveland, 15 Mich. 94; Brackett v. Barney, 28 N. Y. 333; Burke v. Adams, 80 Mo. 504. (5) The deed in controversy having always been held by grantors, and its existence never made known to grantees, or any one else, and never delivered to any one for their use, or declared by grantors to be intended as a present operative conveyance cannot, under the circumstances of this case, operate as a transmission of title. Fisher v. Hall, 41 N. Y. 416; Cummings v. Bramhall, 120 Mass. 564; Shortliff v. Francis, 118 Mass. 154; Maynard v. Maynard, 10 Mass. 455.

NORTON, J.

This suit was brought to cancel a deed executed by plaintiff and her husband to the defendants, for the purpose of removing a cloud upon plaintiff's title. Plaintiff obtained judgment, from which the defendants have appealed. Since the rendition of the judgment plaintiff died, leaving a will, and the cause has been revived in the name of James L. Baker, executor. The following facts appear in the record before us, viz.: that George Tobin, who was the husband of plaintiff, in 1845, entered eighty acres of land in Schuyler county, in his own name, and one hundred and sixty acres in the name of his wife. The evidence tends to show that this land was entered by Tobin with money which his father, who died in Kentucky, had willed to Tobin's children. On the twenty-fourth of August, 1849, Tobin and wife executed a deed conveying the said two hundred and forty acres of land to their children, six in number, four of whom were minors, one of unsound mind, and another being married, and all of whom lived with their parents on the land, except the married daughter, who lived about twelve miles distant. The consideration named in the deed was five dollars, and natural love and affection. The deed was duly acknowledged before the circuit clerk, filed for record, and duly recorded. After the deed was recorded Tobin took it to his house, where it remained with his other papers till his death, which occurred in 1878, and being then discovered, Mrs. Tobin, the plaintiff destroyed it by burning it up. Alvra, the oldest child, and of unsound mind, and Melvina, another of the children, have always lived with their parents on the land.

After the execution and recording of the deed, Tobin and wife lived upon the land as before, exercising acts of ownership over it, receiving the beneficial use of it, and paying the taxes upon it. Ellen, one of the children, married John Haney in 1856, and Tobin and wife told him on the day of the marriage that he had made forty acres of land that day. This witness testified that after the war, by direction of Tobin and wife, he selected forty acres of the land, improved it and lived on it till 1881, when he left it to avoid trouble. Trabur, who married Josephine, another daughter, joined her in conveying one-sixth interest in the land, in October, 1854, to said Tobin, and in 1856, plaintiff joined her husband in a deed re-conveying the same back to Josephine, Tobin saying to Mrs. Tobin, after the deed was made, “that it was all fixed now; Josephine stands like all the rest of the children.” Plaintiff, who, at the time of the trial, was about eighty years old, testified that she did not execute the deed to Josephine in 1856, nor the deed to the children in 1849.

There was no actual manual delivery of the deed, acknowledged and recorded in 1849, and in consequence of the failure of the clerk to index the deed, the fact that it was recorded was unknown till about six months after the destruction of the deed by plaintiff, when it was discovered by Mr. Graves, to whom she proposed to sell the hundred and sixty acres which had been entered in her name. There was evidence tending to show that Mrs. Tobin always claimed this land, and also evidence that Tobin spoke of it repeatedly as land belonging to the children, and also evidence tending to show that the children understood the land to be theirs, although there is nothing to show, outside...