Williams v. Latham

• Decision Date: 02 July 1892
• Court: Missouri Supreme Court
• Parties: WILLIAMS et al. v. LATHAM et al.<SMALL><SUP>1</SUP></SMALL>

20 S.W. 99

113 Mo. 165

WILLIAMS et al. v. LATHAM et al.¹

Supreme Court of Missouri, Division No. 1.

July 2, 1892.

DEEDS — WHAT CONSTITUTES DELIVERY.

A grantor, with the expressed intention to convey land, during her lifetime duly executed certain conveyances thereof, reserving the possession and rents for her life, and, the grantees being at the time absent, gave the deeds for the grantees unconditionally to a third person, who did not record them, but kept them till after the grantor's death, when she delivered them to the grantees, and they were recorded, she understanding that this was the grantor's wish and intention. Held, that the delivery of the deeds to the third person was absolute, and, the contingency upon which the second delivery was to take place being certain, she held the deeds as trustee for the grantees' benefit, and the second delivery related back to the first, and was a good delivery in the lifetime of the grantor.

Appeal from circuit court Jackson county; JOHN W. HENRY, Judge.

Action by Elizabeth C. Williams and others against Lizzie Latham and others to set aside a deed executed and acknowledged by Sarah A. Smith. Judgment for defendants. Plaintiffs appeal. Affirmed.

Peake, Yeager & Ball, for appellants. R. S. Rodgers and Albert Young, for respondents.

BRACE, J.

The plaintiffs, who are heirs at law of Sarah A. Smith, deceased, bring this suit to set aside a deed executed and acknowledged by the said Sarah A. on the 14th of December, 1888, and recorded on the 20th of May, 1889, conveying that part of lots 39 and 40 in Smart's third addition to the city of Kansas, situate at the northeast corner of Tenth and Cherry streets, contained within the metes and bounds set out in the petition, to the defendant Lizzie Latham, on the ground that the said deed was never delivered in the lifetime of the said Sarah A. The finding and judgment below was for the defendants, and the plaintiffs appeal.

It appears from the evidence that Mrs. Smith was the owner in her own right of several lots in Kansas City, on which there was a block of dwelling houses; that she resided with her husband and stepdaughter, Mrs. Thompson, at Topeka, Kan.; that she died May 17, 1889, leaving, surviving her, her sister, the defendant Nancy Holden, who since the institution of this suit has also died; and the plaintiffs Elizabeth C. Williams, Laura E. Teller, and Emma F. Burns, children of a deceased sister, her only heirs at law; that her sister, Mrs. Holden, living at Kansas City, had four daughters, to whom their aunt, Mrs. Smith, was very much attached, one of whom is the defendant Lizzie Latham; that Mrs. Smith was a clear-minded woman, though an invalid; and for some years previous to her death intended to give this Kansas City property to the children of her stepdaughter, Mrs. Thompson, and her four nieces, the daughters of Mrs. Holden; and at one time had a will prepared, or partly prepared, to effect such purpose. She changed her mind, however, and determined to effect that purpose by executing deeds to them, after consultation with her husband and friends, and being advised by her lawyer that it could be so done. Accordingly five deeds were drawn conveying the specific property she intended for each of her said nieces and the children of her said stepdaughter, by a separate deed to them; the deed in question to Lizzie Latham, "reserving the possession and rents of said property to the grantor during her life," being one of them. The deeds were signed and acknowledged and delivered to Mrs. Thompson, (the defendant Lizzie and her sister being absent at the time,) and by Mrs. Thompson kept among her own papers until after the death of Mrs. Smith, when they were delivered to the grantees, and recorded. The only witnesses examined as to the delivery were Mrs. Thompson and Mr. Smith for the plaintiff, and Dr. Jones and Mr. Burgen for the defendants. There is no conflict in their evidence, Upon the question of delivery, Judge Burgen, who drew the deeds at her request, testifies as follows: "Question. Will you state what she told you she wanted to do? Answer. She told me that she wanted to make conveyances of property in Kansas City to four persons, naming them, and two others, the children of Mrs. Ida Thompson. Q. How did she say she wanted it done, and how did you advise her with reference to it? A. She asked me whether good and valid deeds could be made when they were not present. My reply to her was substantially that the delivery of a deed was essential to its validity, but that, if the parties were not present, I supposed it would be valid if delivered to some one else for them. Q. To carry out that intention, what did you advise her, and what did she do? A. I prepared some conveyances as she requested, and as to some of the details, as informed by a written memorandum given me at my office, which was very near to her husband's place of business, by him. I prepared the deeds, and went over to her residence to receive the acknowledgments. I was a notary public at the time at which the acknowledgments were certified. The deeds were all carefully read over to her, every word that was in every one of them, except the formal parts of all except one, and that was read to her in full. I mean the printed part. Only one was read. She looked at every one, and saw that they were identical in printed form. She signed and acknowledged the execution of the deeds to me as a notary public, and she said she would deliver them to Mrs. Thompson. I think she said `Ida,' meaning and referring to Mrs. Ida Thompson, who sat near her. At the time of the delivery I had each one of the deeds in my hand. After it had been signed and acknowledged, and reading the name of the grantee in each one, I asked her if she delivered that deed to Mrs. Thompson for the grantee, naming the grantee. The grantees were Ida Holden, Sallie Merritt, and Nannie B. Beatty, and Lizzie Latham, and the children of Mrs. Thompson, — five deeds, one to...