Turner v. Carpenter

• Decision Date: 31 October 1884
• Citation: 83 Mo. 333
• Parties: TURNER v. CARPENTER et al., Appellants.
• Court: Missouri Supreme Court

83 Mo. 333

TURNER

v.CARPENTER et al., Appellants.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Johnson Circuit Court.--HON. F. P. WRIGHT, Judge.

REVERSED.

S. T. Allen and S. T. White for appellants.

J. P. Orr and Elliott & Jetmore for respondent.

The delivery was complete so soon as the grantor lost the control, and the grantee had the control, or it was in the possession of his agent. The possession of the agent is the possession of the principal. 2 Greenleaf, Ev. 297; 4 Kent (11th Ed.) side page 454; Scrugham v. Wood, 15 Wend. 545; Verplank v. Sterry, 12 John. 536; Ruggles v. Lawson, 13 John. 285; Carter v. Mills, 30 Mo. 432; Yarnell v. Yarnell, 6 Mo. 326. When the plaintiff speaks of delivery “after record” he merely speaks of the return of the deed to him after its record, and not the delivery to transfer title. The first delivery invests him with title from the execution. The other simply gave him the possession after its record in the office of the recorder, and this act of getting possession neither diminished nor augmented the rights of plaintiff. His title was complete from the date of the deed.

HENRY, J.

This is an action of ejectment for the recovery of the possession of several lots in the town of Holden. The petition is in the usual form and the answer, in addition to a general denial, contains a special equitable defence which, in the view we take of the case, it is unnecessary to notice. There was a verdict and judgment for plaintiff from which this appeal is prosecuted.

Turner claims title under a deed executed by one Abram Musick and wife, dated the 5th day of July, 1872, and acknowledged August 27, 1872. Musick, who is a step-son of plaintiff, resided at that time in Missouri, and plaintiff in Illinois. Musick was sued by several parties before a justice of the peace in Johnson county, and immediately after served with summons in those suits left this state and went to Illinois to his step-father's. After he left, judgments were rendered against him in the suits before the justice, one on the 14th of August, 1872, and another on the 21st of August, 1872. An execution was issued on the first of said judgments and duly returned unsatisfied, and a transcript of said judgment was filed in the office of the clerk of the circuit court of said county on the 2nd day of November, 1872, and duly recorded, and at a sale under the execution issued thereon, the defendant, Carpenter, became the purchaser on the 13th day of June, 1873. Afterwards the deed from Musick to Turner was filed for record with the recorder of deeds for said county, to-wit: 13th of November, 1872. The transcript of the justice's judgment was filed in the office of the clerk of the circuit court of said county ten days before the plaintiff's deed was filed for record, and the only question in the case which we deem it necessary to notice is, whether there was any delivery of the deed to plaintiff before said transcript of the judgment was filed in the circuit clerk's office.

The evidence on that point is as follows: The plaintiff in his deposition stated that the deed was delivered to him in the winter of 1872, sometime before Christmas, about that time. “I never saw it before then. Was not present when the deed was made. The reason it was not given to me at the time it was made was that it was not recorded and Musick's wife had not signed it. The deed was made here (in Illinois) and I think it was acknowledged by Musick and his wife after he went back to Missouri.” It appears, also, that plaintiff and his wife executed a power of attorney constituting said Musick their...