103 Mo. 97 | Mo. | 1890
The plaintiffs, Pocahontas and Cassandra Crowder and Martha Moore, are the daughters of Francis Searcy, deceased. The defendant, Smith Searcy, is his only son, and Ada, Martha and Effie are the daughters of Smith Searcy, and granddaughters of Francis Searcy.
Francis Searcy died March 10, 1883. Prior to his death, Francis Searcy was the owner of the following real estate in Daviess county, Missouri, to-wit: All that part of southwest quarter of southeast quarter of section six (6) contained inside the fence around said house and lot on said forty acres, containing eight acres more or less ; also twenty acres off of the east side of the west half of the southeast quarter of section seven (7), also two acres, more or less, out of the northwest corner of the southwest quarter of the northwest
On the eighth day of March, 1883, a general warranty deed from Francis Searcy to Ada, Martha and Effie Searcy, conveying the above-described land, purporting to have been executed and acknowledged on March 5, 1883, was filed for record in the office of the recorder of deeds of Daviess county, and was recorded in book 44, page 282. This is a suit in equity to set aside said deed, on the ground that Francis Searcy was, at the date of its alleged execution, of unsound mind and enfeebled intellect, and charging that he did not execute said deed, nor authorize it, and that it was delivered without his knowledge or consent to the recorder for record.
The petition was filed-November 25, 1885, and the answer November 15, 1886.
‘ ‘ The defendants, Ada F. Searcy, Martha E. Searcy and Effie M. Searcy, for their answer to plaintiffs’ petition, say that Francis Searcy, mentioned in plaintiffs’ petition, died on the-day of March, 1883, leaving surviving him his following-named children and heirs at law, viz.: Plaintiffs, Pocahontas Crowder, Cassandra Crowder and Martha Moore, and defendant, Smith P. Searcy. The defendants, Ada F. Searcy, Martha E. Searcy and Effie M. Searcy, are the children of the above named Smith P. Searcy and the granddaughters of said Francis Searcy, deceased.
[ “Thatsome time prior to his death, to-wit, on the —day of- — 1883, the said Francis Searcy, by warranty deed, conveyed certain lands of which he was the owner to said Cassandra Crowder; at the same time or about the same time he, by warranty deed, conveyed certain other of his lands to said Martha Moore, and, about the same time or at a prior time, the said Francis Searcy conveyed by sufficient deed certain portions of his remaining lands to said Smith P. Searcy, and also gave his daughter, Cassandra Crowder, a large amount of personal
“ That the said Francis Searcy regarding with much favor and affection his three grandchildren, the defendants, Ada F. Searcy, Martha E. Searcy and. Effie M. Searcy, on the-day of- 1883, at the time he was deeding the above-mentioned lands to his children, Cassandra Crowder, Martha Moore and Smith P. Searcy, also by warranty deed in legal form conveyed a quantity of his remaining lands to his said granddaughters, the defendants, Ada F. Searcy, Martha E. Searcy and Effie M. Searcy, which last-mentioned deed included the lands described in plaintiffs’ petition. This last-mentioned deed was duly executed by said Francis Searcy and was delivered by him to his said grandchildren, Ada F., Martha E. and Effie M. Searcy, the defendants herein. By this last-mentioned deed the said Francis Searcy, being of sound mind, intended to convey, and did convey, the lands described in plaintiffs’ petition to said Ada F.; Martha E. and Effie M. Searcy, his said granddaughters.
“ That before this last-mentioned deed was recorded it was ascertained by said Francis Searcy that said deed by mistake of the conveyancer, who wrote said deed, included and conveyed twenty acres of other lands, besides that described in plaintiffs’ petition, which twenty acres said Francis Searcy did not intend to convey to his said granddaughters, but intended to convey only the land as described in plaintiffs’ petition. In the making of this deed this mistake was hot noticed by said Francis Searcy, owing to the lengthy and detailed description in said deed of said lands.]
“That on the fifth day of March, 1883, the said Francis Searcy, for the purpose of correcting the mistake referred to above, and intending to correct said mistake, executed and delivered to defendants, Ada F., Martha E. and Effie M: Searcy, a warranty deed for the
“That in executing and delivering said last-mentioned deed to his grandchildren, Ada F., Martha E. and Effie M. Searcy, the said Francis Searcy intended to convey- and did convey the lands mentioned in said deed and described in plaintiffs’ petition to said Ada F., Martha E. and Effie M. Searcy.
‘•'Defendants, further answering, deny each and every allegation in plaintiffs’ petition, except such as are herein admitted, and pray that they may be discharged with their costs and also for other and proper relief.”
On the motion of the plaintiffs, the circuit court struck out all that portion of defendants’ answer relating.to the execution of a prior deed and included in brackets in this report. To this action of the court defendants duly saved their exception.
The cause was tried at the February term, 1887, of Daviess circuit court. A jury was impaneled to determine certain special issues, to-wit: “ Did Francis Searcy, the grantor in the deed mentioned in plaintiffs’ petition, have sufficient mental capacity at the time he signed said deed to comprehend what disposition he was making of the land mentioned in said deed ?” And, “Was there a delivery of said deed ? ”
Thomas B. Crowder, a brother of Hugh and John F. Crowder, the plaintiffs, testified: He was well acquainted with Francis Searcy. He died March 10, 1883. He was eighty-nine years old. He lived with his son-in-law, Hugh Crowder. Witness was present when deed in question was executed, also some pension papers.
Cross-examination : “The land in the second deed, and in this suit, was intended by him to be conveyed in first deed. He left some $4,000 or $5,000 in personal estate at his death. I had Moore come and correct the deed because I thought it was my duty to do so. I explained to Esq. R. N. Moore the mistake and had him prepare the deed. Francis Searcy knew Moore was preparing the deed, and before he came back into his room called out, ‘Are those papers ready?’ Nobody said anything about his incapacity at the time to make the deed. I sent the pension papers he signed at the time and drew the money on them. I was not aware a man had to be of sound mind to sign pension papers.
‘ ‘ I took the deed and had it recorded. I paid for recording it with the money Francis Searcy had given me to record the first deed. Francis Searcy’s will was made after this deed was made. I was appointed executor. I took the will to the probate court. -Heard the witnesses testifying, he was of sound mind and did not contradict them. At the time I got the second deed (the one sought to be set aside ) I did not object to the manner in which it was made. Francis Searcy never countermanded his instructions to me to record the first deed.”
Martha Moore, the daughter, testified to the circumstances attending the execution of the deed; that Searcy was not conscious of what he was doing; admitted that she did not know all that passed.
Hugh Crowder testified that Francis Searcy was not capable of doing business when the deed was made.
On cross-examination, he says: “After the deed and pension papers were signed, Francis Searcy roused
Bruce Crowder, a grandson, testified his grandfather was in a stupor when they brought the deed for him to sign. On cross-examination, remembered the old man asking for the money to pay the justice. Remembered that Moore only charged fifty cents. N. J. Rogers was nut present when deed was made, but was there after the old man’s leg was broken and he was in a stupor.
Wright Taylor testified the old gentleman was suffering intensely, but he saw nothing to make him think his mind was unsound.
The following testimony was introduced for the defense:
Dr. J. N. Hapman, testified: “I was living in two and one-half miles of Francis Searcy when he died. I have been practicing medicine since 1876; was called to see him when his leg was broken. I knew him well. When I called to see him first after his leg was broken, I observed nothing unusual in the action of his mind. He gave me a perfectly rational and intelligent answer to every question I asked him. I gave him a little morphine to quiet his pain. I saw him twice a day until he died. I saw nothing at any visit I made to indicate that he was of unsound mind. His mind never seemed to wander in the least. He always recognized
Cross-examination: “He did not retain even water on his stomach. Píe was scarcely competent to enter into the intricate mysteries of legal business like you (speak-ing to plaintiffs’ attorney). He might have, under certain conditions, signed a paper without knowing what he was doing, that is, if his hand had been raised and put to a pen without his being aroused. There was no fever or inflammation. I do not think there was a time during his last sickness and injury to the time of his death, that he was not fully competent to dispose of his property as he desired to, and he would know just how he was disposing of it. After he was injured I heard Mm talk to several persons, and he always recognized them and talked rational.”
Samuel Costelo, being sworn, testified as follows : “I have known Francis Searcy since 1862. Was with him a great deal. He had a strong and vigorous constitution. . He was able to transact pretty much all of his own business up to the hour of his death. I saw him the Sunday after his leg was broken. He knew me and his mind was sound — talked as rational as I ever heard him. He was suffering considerably from his broken leg, and the pain seemed to make him keep his eyes closed a good deal. He m ade his will after his leg was broken and after he signed deed in question. I was present when
Cross-examination: “He was of sound mind when he made his will, and I think he was perfectly competent to make a wTill or deed.”
David Taylor, being sworn, testified as follows : “I am not related to Francis Searcy. I had known him a long time. Before his leg was broken, his physical health was excellent. I met him in December prior to the accident and he was then as rational as any man in his talk. His mind seemed to be vigorous. I was at Francis Searcy’s the night he made his will. He shook hands with John Palmer and others, calling them by their names. His mind was sound. When he talked his conversation was as rational as anybody’s. He appeared a little stupid at times.”
Cross-examination: “I heard his talk about his will. His mind seemed clear as to how he was g'oing to dispose of his property. He appeared to be stupid at times, but when roused he was fully at himself.”
John Perman, being sworn, testified as follows: “I had known Francis Searby some twelve or fourteen years. I lived on his farm six years. I am a cousin to defendants. I had a conversation with Mrs. Martha Moore at Gallatin at the time the will was contested, and she told, me that Francis Searcy’s mind was clear up to the hour of his death. She was in favor of the will standing.”
Samuel Hembaugh, being sworn, testified as follows : “I am not related to any of the parties. I have known Francis Searcy for many years. I saw him a short time before the accident in which his leg ivas broken and conversed with him. His mind was sound
Oliver Wigglesworth, being sworn, testified as follows : “I saw Francis Searcy a day or two after his leg. was broken. I saw him shake hands with Mr. Taylor, recognizing him, and ask. how he was. He talked perfectly rational and his mind was sound.”
Cross-examination: “Mrs. Martha Moore, his daughter, talked some to him while I was there. His talk was rational. Saw nothing which indicated in the least that he was out of his mind.
Poss Searcy, being sworn, testified as follows: “I was in room where Francis Searcy was the Sunday he was hurt. He was in his right mind and acted and talked as rational as I ever saw him. His leg was paining him considerably. I was also there the following Tuesday and saw nothing to indicate that he was not of sound mind. Also, I was there the following Friday when the will was made. Thomas B. Crowder was there. Francis Searcy wanted to make a will but they had no paper. Thomas B. Crowder came to me to go and get some paper on which to make a will. I then asked Thomas B. Crowder if Francis Searcy was of sound mind so as to make a will. He replied that Francis Searcy’s mind was perfectly sound — as sound as it ever was. I was present when the will was made. Francis Searcy talked and told how he wanted to dispose of his property. He spoke of all his property and what he wanted each one to have. He did not say
Cross-examination: “I asked Thomas B. Crowder if Francis Searcy’s mind was sound, because I knew . Francis Searcy was in great pain from his leg.” .
Smith P. Searcy, being sworn, says: “I am a son of Francis Searcy, and the father of the defendants, Ada F., Martha E. and Effie M. Searcy. I heard my father on different occasions before the making of the deed say that he would make provisions for my three daughters, the defendants. I heard him tell them so, and he told me so. He told them they should have the land in the deed in question. My three daughters, the defendants, are in possession of the land mentioned in the deed in question and have been in possession ever since the making of the first deed long prior to father’s injury. My father put the defendants, my daughters, into the possession o,f the land. I saw my father on several different occasions after his leg was broken, and his mind was sound. At the time my father made the first deed to my daughters, he had no land except what he deeded on that occasion to my daughters, the defendants, and what he deeded to Cassandra Crowder, one of the plaintiffs. At the time the deed of correction, the deed in question, was made my father had no land — he had deeded it all away. He had no land when his will was made.”
Henry Adams, being sworn, says : “I had known Francis Searcy many years. Lived in his neighborhood. He had a vigorous constitution. I saw him after he was hurt and conversed with him. He was , suffering a great deal, but he was perfectly rational and his mind was' cleab and sound to the hour of his death. I know the land mentioned in the deed in question. The defendants, Ada F., Martha E. and Effie
This was all the testimony.
At the close of the evidence the court at the instance of the plaintiffs, and over the objections of defendants, instructed the jury as follows: “Unless the jury find from the testimony that, at the time the deceased attached his mark to the deed in question he knew its nature and contents and signed the same as his own voluntary act and deed comprehending at the time its full scope and effect, then the said deed is void, and the jury should find for the plaintiffs.”
“Although the jury may believe that the deceased had some mental capacity remaining, yet unless they find that at the moment of making his mark he knew and comprehended the full scope, nature and contents of the deed in question, and intended at the time to execute the same, then the said deed is void and the jury should find for the plaintiffs.”
The court at the instance of the defendants instructed the jury as follows : “The jury are instructed
“ The jury are instructed by the court, that they are the sole judges of the weight of the evidence and the credibility of witnesses, and they ought to give to the testimony of each witness such weight only as they may think it justly entitled to.”
In addition to the foregoing instructions, the court, at the suggestion of plaintiffs’ counsel, submitted the following interrogatories to the jury. The answer to. each interrogatory given by the jury being written down immediately after each question :
“First. Were the contents of the deed in suit explained to the deceased at the time ? A. Yes.
“Second. Bid the deceased know at the time that he was signing the deed in question? A. We believe he did.-
‘4 Third. Bid the deceased know the contents of the deed in question ? A. We believe he did.
“Fourth. Is it disclosed by the testimony that any one had told the deceased that the original deed was to be corrected ? A. We believe it is.
“Fifth. If so, who told him? A. We believe Thomas B. Crowder.
“Sixth. Bid the deceased direct anyone to prepare the deed in question ? A. We believe he did.
“Seventh. If so, whom? A. Thos. B. Crowder.
“Eighth. And if so, when? A. Whenprror was explained in former deed.
4 '■Ninth. Wha't authority did deceased give Crowder to put the deed in question on record ? A. By same authority as informer deed.
“Tenth. Bid the deceased understand the nature and contents of the deed in question? A. Yes.
*114 “Eleventh. If so, how and from whom did he derive his information ? A. Esq. Moore.
“Twelfth. Did the deceased direct anyone to either deliver the deed in question to the grantees, or to have the same recorded? A. Yes.
“Thirteenth. If so, how and when ? A. When he delivered the original deed.
‘ Fourteenth. Was the deceased, at the time that his mark was placed upon the deed in question, fully informed of its contents, and did he comprehend its nature and extent? A. Yes.”
At the suggestion of defendants’ counsel, the court submitted interrogatories as follows, answers to which by the jury are written after each question :
“First. Had Francis Searcy at the time the deed was signed sufficient mental capacity to comprehend the act of signing? A. Yes.
“Second. At the time the deed was signed, did Francis Searcy sign the same with the intent of conveying the lands therein described, to the grantees therein mentioned, to-wit: Ada F. Searcy, Martha E. Searcy and Effie M. Searcy ? A. Yes.
“Third. Was the deed after it was signed, taken with the consent of Francis Searcy by R. N. Moore, justice of the peace, and, by consent of said Searcy, left by said Moore at the house of H. S. Crowder, in order that grantees therein or some one for them might receive said deed? A. We believe it was.
‘Fourth. Was the deed in question placed on record by Thomas B. Crowder by the authority, express or implied, of said Francis Searcy ? A. Yes.
“Fifth. When Thomas B. Crowder placed said deed on record, was he acting as the authorized agent of Francis Searcy in that respect ? A. Yes.
“Sixth. When Francis Searcy signed said deed, was he aware of what disposition he was making of his property mentioned in said deed ? A. Yes. ”
And afterwards on the same day defendants file their motion for new trial as follows : “Now come the defendants and move the court to grant them a new hearing for the reasons :
*116 “First. Because the finding of the court, that there was no delivery of the deed in controversy, is / against the evidence.
“Second. Because the finding of the court, that the deed was not delivered, is against the láw.
“ Third. Because the finding of the court, that there was no delivery of the deed, is unsupported by the evidence.
“ FourtJi. Because the court erred in disregarding the finding of the jury, that there was a delivery of the deed;
“Fifth. Because the court erred in sustaining plaintiffs’ motion to strike out part of defendants’ answer. .
“Sixth. Because the court erred in disregarding the answer of the jury to an interrogatory propounded by defendants (written by mistake plaintiffs) as to the delivery of the deed.
“Seventh. Because the court erred in giving improper instructions to the jury on the part of plaintiffs.”
The circuit court, by its decree, adopted the finding of the jury, that Francis Searcy, at the time of the execution of the deed sought to be annulled, was of sound mind and understood and comprehended the act, and that said deed was executed and acknowledged by him, but it declined to adopt the finding of the jury that this last deed was delivered by Francis Searcy, within contemplation of law.-
Only two questions then are left for our decision. The first is one oE pleading.
The court on motion of plaintiffs struck out all that portion of defendants’ answer, which set up the execution and delivery by Francis Searcy, the father of plaintiffs, of a prior deed to those same lands. The ground of the motion simply was that these facts were irrelevant, redundant and constituted no defense. No authority sustaining this view has been cited by the learned
Keeping in mind then, that plaintiffs’ sole claim and right to attack this last deed arose from their being the heirs at law of Francis Searcy, and granting for argument’s sake that there was no delivery of this deed, what rule of equity or consistency would be violated by permitting them to prove that plaintiffs’ ancestor, from whom they deduce their only title and right to inquire into the delivery of this last deed, had, long prior to his death and execution of this last deed, made and delivered a deed conveying this land to defendants ?
Would not the proof of this fact demonstrate that plaintiffs have no standing in court, and is it inconsistent for a man to correct a deed or even by mistake make two deeds? We think not. The defendants’ title was attacked. They were in possession of lands by virtue of two deeds from their grandfather. His heirs were attacking their right. By every principle of right and consistency they were entitled to show that plaintiffs were estopped by their father’s deed. The circuit court erred in striking out this portion of defendants’ answer.
The only remaining question, and a vital one in this cause, is, did Francis Searcy deliver the deed of date March 5, 1883, to defendants ? “The delivery of a deed is essential to the transfer of the title. It is the final act, without which all other formalities are ineffectual.” Younge v. Guilbeau, 3 Wall. 636.
But, while this is true, it is not necessary to pursue any particular form or coarse to effect a delivery. The whole object of a delivery is to indicate an intent upon the part of the grantor to give effect to the instrument. In Cannon v. Cannon, 26 N. J. Eq. (11 Green C. E.) 316,
Thus if both parties are present when the usual formalities of execution take place and the contract is fully carried out, and nothing remains to be done except the empty ceremonies of passing the deed from grantor to grantee, the law, regarding the substance and disregarding the form, will adjudge the title passed, even though the deed should remain in the custody of the grantor.
The rale in this state has been settled by the decisions in the cases of Tobin v. Bass, 85 Mo. 654, and Standiford v. Standiford, 97 Mo. 231, that “when a deed to a minor from his father is absolute in form and for his benefit, and the grantor voluntarily hands the same to a third person, telling him to have it recorded and to keep it safe, and such third person after the death of the grantor delivers the deed to the recorder for l’ecord, the second delivery has relation to the first and it is a deed ab initio.”
“The law presumes much more in favor of the delivery of deeds in the cases of voluntary settlements, especially when made to infants than it does in ordinary cases of bargain and sale.” Bryan v. Wash, 2 Gilm. 568.
In this case, the grandfather had voluntarily executed a deed to the defendants, his granddaughters. He had partitioned his estate among hi$ .children. He was seeking to preserve these granddaughters from want on account of their father’s dissipation. He had. declared his intention of making this deed more than once. Under the impression that the first deed was accomplishing his purpose, he handed it to Thomas
Crowder discovered the mistake. He brought the deed back and informed Francis Searcy of the mistake. Searcy did not demand a return of the deed. He left the money to record the deed in Crowder’s hands. He afterwards appears anxious to have “the papers,” this deed and the pension papers, completed. Called out from his bed, to know if they were ready. He is assisted in the execution. Immediately after the execution and acknowledgment, he calls for money to pay the justice for the preparation and acknowledgment of the deed. The jury and the circuit judge who tried the cause were satisfied he was fully aware of the execution and purpose of this deed. His intention is unquestioned.
This second deed is so intimately connected with the first, that we are bound to so construe the acts of this old grandfather, that the power to record the first deed and the money left in the hands of Crowder were continued and intended to attach to the corrected deed. This we are satisfied was his intention. Crowder so construed it. He did record the deed as corrected. In equity the two constitute one paper and one transaction, and the placing the deed of record was the culmination of the power delegated.
We hold, therefore, that the circuit court erred in decreeing this deed was not delivered, and the said decree and judgment is reversed, and, as the plaintiffs’ own evidence shows they have no merit or standing in a court of equity, their bill is dismissed.