167 Mo. 564 | Mo. | 1902
This is a suit in equity to set aside two deeds dated June 9, 1896, which the petition alleges were made and signed by Henry Dilley, deceased, and placed on record in the office of the recorder of deeds of Daviess county, one conveying the southwest quarter of section 21, township 61, range 29, in said county, containing 160 acres, to his sons John A. Dilley and Willis B. Dilley, the other conveying the east half of the southwest quarter and the northwest quarter of the southwest quarter of section 20, township 61, range 29 in said county, containing 120 acres, to his son Charles E. Dilley, on the grounds that the said Henry Dilley at said date was of unsound mind, incapable of making an intelligent disposition of his property, that said deeds were without consideration, and that said Henry E. Dilley was unduly influenced and procured by said parties to make and sign said deeds for
(1) This case was brought here on a copy of the judgment in lieu of a complete abstract and was set for hearing on January 9, 1902. On December Y, 1901, a copy of the complete abstract, together with appellants’ brief, was delivered to the respondents, and on December 2Y, 1901, ten copies thereof were filed with the clerk of this court. On January 3, 1902, the respondents delivered to the appellants their reply brief based on such abstract, and filed the same on January 8, 1902, and on January 9, 1902, filed their motion to dismiss the appeal for failure to comply with that part of rule 11, which requires ten copies of the abstract to be filed with the clerk thirty days before the cause is set for hearing. On that day the cause was without argument submitted on briefs, and this motion is now to be disposed of. It will be overruled; so much of the rule as was intended for the respondents’ benefit was complied with. They received a complete copy of the abstract more than thirty days before the day on which the case was set for hearing. That the ten copies were not filed with the clerk “in like time” worked no injury or even inconvenience to them. By replying in due course under the rule, and not making any complaint until the day the case was set for hearing, they must be held to have waived this mere technical failure that in no way injuriously affected their interests.
(2) The evidence tended to prove that when Henry Dilley died on July 9, 1896, he was about sixty-nine years of age,
(3) After all the evidence in chief on each side had been given, the notary was recalled by the plaintiff and testified that after the deeds were signed and acknowledged, he took them home and affixed his seal, where they remained (he supposing that some of the family would call for them) until after the death of Henry Dilley, when he delivered them to his son, Barney Dilley. On the objection of the defendants, this evidence was stricken out. Thereupon plaintiffs asked leave to amend their petition by inserting the allegation that “there was no delivery of the deeds in question during the lifetime of' the grantor,” so that the same will conform to the testimony given in this case, to which the defendants objected; the court sustained the objection, and the defendants excepted, and as
A deed in contemplation of law is not made (i. e., executed) until it is signed and delivered. The delivery is just as essential to the execution of a deed as the signing. The plaintiffs’ cause of action was based and up to this point had been tried upon the theory that these deeds had been executed by Henry Dilley, and the ground upon which the aid of a court of equity was invoked to set them aside was that he was of unsound mind when he executed them, and their execution was procured by undue influence. Now by this evidence and amendment it was sought to change the claim stated in the petition upon which they were asked to be set aside, by introducing another claim wholly inconsistent therewith, i. e., that they were not delivered — a change in plaintiffs’ claim, making necessary also a change in the defense thereto. This was not permissible under the statute, and the court committed no error in refusing to allow it.
It follows from what has been said that the judgment of the circuit court ought to be affirmed, and it is accordingly so ordered.