Coulson v. Coulson

180 Mo. 709 | Mo. | 1904

VALLIANT, J.

This is a suit in equity to set aside a deed made by the plaintiffs ’ mother in her lifetime. The ground on which the validity of the deed is assailed is that it was not delivered, the ground on which equity jurisdiction is invoked is that the deed, being on record, clouds the title of the plaintiffs.

The land covered by the deed is a farm of 100 acres in Macon county; it was the property of the plaintiffs ’ mother who died intestate, leaving these two plaintiffs her only heirs. The deed is in the words following :

“This deed witnesseth — That Margaret A. Coulson, single, party of the first part, in consideration of the sum of one dollar to her paid, do hereby grant, bargain and sell, convey and confirm unto J. A. Coulson and W. B. Coulson, parties of the second part, of the following described real estate, situated in the county of Macon and State of Missouri, to-wit: the northeast quarter of the northeast quarter, and the southeast quarter of the northeast quarter and the south half of the southwest quarter of the northeast quarter of section twenty-four (24), township sixty-one (61), range fifteen (15), Adair county, Missouri, containing in all one hundred acres more or less.

“Hereby covenanting that she will warrant and defend the title to said premises against the claims of every person whomsoever — except all taxes that are due or may become due. It is also agreed and understood that the said above described land shall not be subject to or used in any way as security for notes or other debts by said parties of the second part. It is agreed to and a part of the consideration herein that the said J. A. Coulson and W. B. Coulson, the said parties of tbe second part, shall each of them contribute and pay over to my daughter, Myrtle Bridges Coulson, thirty dollars each cash in hand, each and every year from and after the death of the grantor herein and each of the said parties of the second part shall continue to pay said amount, each, yearly to said Myrtle Bridges Coulson, until she shall become twenty-one years of age — should said Myrtle Bridges Coulson attain such age — but should the said J. A. Coulson and "W. B. Coulson, the said parties of the second part, die prior to the said Myrtle Bridges Coulson, or should the said Myrtle Bridges Coulson survive the said J. A. Coulson and W. B. Coulson, or either of them, then all of the above described lands shall be vested absolutely in Myrtle Bridges Coulson. It is further agreed and understood that all of the above described lands shall remain in full and absolute charge and control of the said Margaret A. Coulson, said party of the first part, during all of her natural life. Should the said J. A. Coulson and W. B. Coulson, or either of them, fail or refuse to comply with any or all of the provisions and agreements of the foregoing, they or either of them shall forfeit all right, title and. interest in and to the above described real estate and the title to the same shall be vested in said Myrtle Bridges Coulson.

“Witness my hand this day of--A. D., 190-.

“Margaret A. Coulson.”

It was duly acknowledged on May 1st, and recorded on May 7th, 1900.

At the time of making the deed Mrs. Coulson lived in La Plata, her two sons, the plaintiffs, who were then aged 44 and 46 years respectively, did not live with her; the only person, so far as the evidence shows, who did live with her was the defendant, whom she described in the deed as “my daughter Myrtle Bridges Coulson.” Myrtle was not in fact her daughter, but had been taken when she was four years old by Mrs. Conlson and reared in her household; at the date of this deed the child was thirteen years old. The evidence as to the execution of the deed was to the effect that on May 1, 1900, Mrs. Coulson accompanied by Myrtle went to the office of a notary public in La Plata and requested him to write the deed which he did as she dictated, then she acknowledged it in due form (the acknowledgment being duly certified), and requested him to send it to the circuit clerk of the county to be recorded, which he did, and the deed was duly recorded. It was returned by the clerk after being recorded to the notary, who held it in his keeping until after the death of Mrs. Coulson. She died intestate within three or four months after executing the deed.

There was testimony on the part of the defendant tending to show that the plaintiffs knew that the deed had been executed and had seen the record of it; also that shortly after the death of their mother, in a suit relating to the rents, they claimed title under the deed. There was also evidence of a conversation between the mother and one of the plaintiffs in which he spoke angrily to her about her having made the deed, and she replied that he had never done anything' for her and that she intended the child to have the farm.

The court found the issues in favor of the plaintiffis, and decreed that the deed “be set aside and held for naught as to plaintiffs wherein any interest is attempted to be created in defendant, and the title in fee is absolutely decreed and adjudged in plaintiff.” From that judgment the defendant appeals.

The plaintiffs make no claim as purchasers of this land; they set up no contract title to it. They did in the beginning, in their petition, set up a claim by contract, but at the opening of the trial they expressly abandoned it.

The only title they claim is that by inheritance from their mother, whose deed they seek to set aside. An heir has no better title than his ancestor had at the time of his death — the heir takes the title in the condition in which his ancestor left it. In their attack on this deed these plaintiffs stand in their mother’s shoes —if the deed could have been avoided by her it can be avoided by the plaintiffs — if it was binding on her it is binding on them. They conld not, against their will, be forced to take title under the deed; if they have never accepted it they may renounce it as they now claim to have done, but when they elect to come in as heirs they take what their ancestor had, if anything, at the time of her death.

The only ground on which the deed is assailed is its alleged non-delivery, and the only estate that is sought to be destroyed is that granted to the infant defendant.

The delivery of a deed so far as the grantor is concerned is a matter of intention, and where the intention clearly appears the act in pursuance thereof will be construed to constitute a delivery. [Sneathen v. Sneathen, 104 Mo. 201; Standiford v. Standiford, 97 Mo. 231; Tobin v. Bass, 85 Mo. 654.]

Tested by that rule there can be no doubt that this deed was delivered in so far at least as it affects the rights of the infant grantee. Mrs. Coulson intended by her act to do everything that was necessary to accomplish the deed of gift to her foster child. She took the child with her to the notary, dictated the deed, and when it was written she signed, sealed and acknowledged it, and delivered it to the notary to send to the recorder of deeds that it might be placed on record and thus proclaimed to the world. She intended the deed to operate as a present transfer of the interests therein specified and to place it beyond her power to recall. Her acts a.t the time and her conduct thereafter showed that to be her intention. Under those circumsances the law will imply a delivery and an acceptance by the infant. [Pearce v. Dansforth, 13 Mo. 360; Kane v. McCown, 55 Mo. 181; Burke v. Adams, 80 Mo. 504.]

We think, also, that the evidence shows that these plaintiffs knew that their mother had made this deed,: that they had seen the record of it before her death and had claimed title under it shortly after her death. Prom those facts the law will imply an acceptance on their part.

The point is made by respondents that the record does not show that a guardian ad litem was appointed for the infant defendant. The duty of having a guardian ad litem appointed by the court devolved on the respondents an.d they should not be heard to say that that was not done while they are attempting to maintain a decree which they could not have lawfully obtained until such a guardian had been appointed. But the respondents are mistaken in point of fact in that particular. The decree recites, and its recitals of such facts import verity, that a guardian ad litem was appointed and that the infant appeared, and defended by her guardian ad litem and by him prosecutes this appeal. The record also shows that the infant by such guardian took all the necessary steps subsequent to the decree to bring the cause properly before this court for review.

The trial court reached an erroneous conclusion on the question of the delivery of the deed. The judgment is reversed and the cause remanded to the circuit court with directions to enter judgment for the defendant and dismissing the plaintiffs’ bill.

All concur.