Zumwalt v. Forbis

• Decision Date: 03 June 1942
• Docket Number: 37861
• Parties: Cora (Mrs. Field A.) Zumwalt, nee Forbis; Mr. Field A. Zumwalt, her husband; Eva Lucille Manchester, nee Forbis, and Robert Fairhurst Manchester, her husband; Ambrose Luther Forbis, Jr., a single man, and Maud Susie (Mrs. Ambrose Luther) Forbis, Appellants, v. Thomas Waller Forbis and Nora Forbis, his wife; Mrs. Edna Owen, nee Forbis; Mrs. T. L. (Fosha) Nichols and Mr. T. L. (Fosha) Nichols, her husband; Ula Morris, nee Forbis, and all of the heirs, executors, administrators, devisees, trustees and assigns, immediate and remote, known and unknown, of Lucy Ann Forbis, Clyde Forbis, Van Forbis, and Ambrose Luther Forbis
• Court: Missouri Supreme Court

163 S.W.2d 574

349 Mo. 752

Cora (Mrs. Field A.) Zumwalt, nee Forbis; Mr. Field A. Zumwalt, her husband; Eva Lucille Manchester, nee Forbis, and Robert Fairhurst Manchester, her husband; Ambrose Luther Forbis, Jr., a single man, and Maud Susie (Mrs. Ambrose Luther) Forbis, Appellants, v. Thomas Waller Forbis and Nora Forbis, his wife; Mrs. Edna Owen, nee Forbis; Mrs. T. L. (Fosha) Nichols and Mr. T. L. (Fosha) Nichols, her husband; Ula Morris, nee Forbis, and all of the heirs, executors, administrators, devisees, trustees and assigns, immediate and remote, known and unknown, of Lucy Ann Forbis, Clyde Forbis, Van Forbis, and Ambrose Luther Forbis

No. 37861

Supreme Court of Missouri

June 3, 1942

Reported at 349 Mo. 752 at 757.

Original Opinion of June 3, 1942, Reported at 349 Mo. 752. [Copyrighted Material Omitted]

OPINION

Douglas, P. J.

On Motion for Rehearing.

Appellants contend in their motion for rehearing that the general rule placing the burden of proving the nondelivery of a deed upon the party who seeks to set it aside for that reason, although stated by encyclopedias of law, is not the rule in this State. Such a rule seemed to us to be so sound as to require no further citation. This State follows the rule. In McFarland v. Brown (Mo.), 193 S.W. 800, this Court declared: "It is claimed by respondents [plaintiffs] that there was no evidence of delivery of the deed. The burden was on plaintiffs to make out their case and prove nondelivery if they relied upon that issue. In any event the possession of the deed by the defendant was sufficient to raise the prima facie presumption of delivery. [Scott v. Scott, 95 Mo. 300, 8 S.W. 161; Pitts v. Sheriff, 108 Mo. 110, 18 S.W. 1071.]"

Appellants cite for the first time Tyler v. Hall, 106 Mo. 313, 17 S.W. 319. That case is not apposite because after the death of the grantor "the deed in question was found by the administrator, in a desk kept by deceased, and under his control, among other papers belonging to him at his death. It was afterwards given into the possession of defendant by the administrator." Under these facts the court held that the burden of proving delivery was upon the person claiming under the deed. But the court further said: "If the deed, properly executed, had, on the death of the grantor, been in the possession of the grantee, a presumption of delivery would have arisen, which could only have been overcome by satisfactory evidence." This latter situation is the one we have now before us.

Appellants renew their argument that there is a presumption the deed was not delivered arising from the fact it was recorded after the death of the grantor.

In this connection they rely on Southern v. Southern (Mo.), 52 S.W.2d 868. It seems to us that case supports a view contrary to theirs. It was a suit to...