214 Mo. 473 | Mo. | 1908
From a decree of the Gentry Circuit Court adjudging a certain deed conveying one hundred acres of land from plaintiff to his sister, Rosalie, null and void and divesting the record title out of her and into him, defendant appeals.
The bill is subdivided into counts. If that method of pleading be not somewhat of an innovation on modern equity practice, yet the counts as such need no attention, for the gravamen of both is the same — the first merely stating thq cause of action with more full* ness of detail than the second.
It is alleged in the bill that plaintiff is the owner of the north half of the northwest quarter of section 15’, and 20 acres off of the south end of the southwest quarter of the southwest quarter of section 10', all in township 63, range 31, in Gentry county, and is and has been for forty years in possession; that on May 15, 1890, he was threatened by one Sarah Kuhey with a suit for damages for breach of promise to marry; that having in view the disposition of his land he “did make and. execute ’ ’ a warranty deed on said date, purporting to convey said real estate to defendant; that be acknowledged it; that defendant induced him to make it by stating to him she would assist him thereby in preventing said Sarah Kuhey “from securing said land or taking said land under and by virtue of any suit instituted or that might thereafter be instituted by her,” said Kuhey; that defendant being his sister he implicitly trusted her and relied upon her said statements and promises; that the deed was without consideration; that plaintiff
The answer admitted Rosalie holds title by virtue of the deed, but denies each and every other allegation in the petition. It next goes on to allege that she is the rightful owner of the premises, that she purchased the same for a full and valuable consideration paid by her; that the conveyance was intended to be operative in conveying the legal title. Based on such allegations, she prayed affirmative equitable relief, viz., that the court declare she is in good faith the legal and rightful owner of the premises, discharged of any equity or trust whatsoever, and for all other and proper relief.
On such paper issues the cause was tried, and the chancellor found (1) there was no consideration for the
The case on appeal presents three propositions, viz.:
First. Was there error, nisi, in finding no consideration for the deed?
Second.- Did the chancellor err in finding there was no delivery of the deed?
Third. On all the facts, will a court of conscience interfere?
I. Of payment. There was testimony by plaintiff that no valid or valuable consideration passed from defendant to him. Creamer testified that way. He introduced witnesses' who testified to facts pointing the same way and strongly corroborative to the effect that in 1890 Rosalie lived in an humble way in the town of Albany and eked out a scant living for herself and family as a washwoman; that she had no visible signs of ready money and practically admitted to others she paid nothing. Contra, defendant put in proof on the issue of payment, in substance, that the money was paid shortly after the date of the deed partly out of Rosalie’s savings as a washwoman, partly out of her savings in raising and selling chickens, a few pigs and a cow or so each year and partly out of money sent and brought to her by Louis, her son, who on coming to man’s estate worked in Colorado in restaurants and saloons at $40 per month and who went to Oklahoma at the opening of the territory for settlement. This money had been kept in a wardrobe in an upper chamber hid in the lining of an old fur muff, which said muff had a somewhat picturesque and variegated career. Not only was it at the start a wedding present, and presently the family money chest, but at a certain time it was put out in the sunshine to rid it of moths when a puppy (not understanding or respecting the purpose of its appearance within his reach and runways, nor its
If the issue of-payment or no payment is to be determined by the mere bulk of the testimony and the number of the witnesses pro and con then defendant had the better of it, for the existence of the muff, its use in secreting treasure, the existence of the hidden treasure itself and its appropriation in paying for the land are shown by the copious testimony of several members of the Bivert family. As against their positive testimony stands that of plaintiff himself supported by corroborative proof of the character stated. But the justice of a cause does not alone hang or turn on the count of witnesses on the fingers, or on mere numerical weight. That (by itself) would be a crude rule for establishing a fact. The philosophy of the plan of getting at the fact, in cases of conflict in testimony, has deeper and more sure guides than such easy scheme. Here there was a maze of testimony affecting the credibility of some of the witnesses on both sides — there were currents and cross-currents in it sharply affecting the probability and the improbability of the stories told on the stand. The bulk of the testimony was oral. In such condition of things, while this court has said over and over again that the whole record must come here in equity cases so that (sitting as the final arbiter in chancery) we may weigh and decide de novo and thus do equity, yet the court is also fond of saying that deference should be given to the trial chancellor. He sees and hears much we cannot see and hear. We well know there are things of pith that cannot be preserved in or shown by the written page of a bill of exceptions. Truth does not always stalk boldly forth naked, but modest withal, in a printed abstract
Therefore it is our opinion that if there is nothing in this case but the issue of payment or no payment we would not disturb the decree.
We are furthermore of the opinion that the issue of payment, whether found for plaintiff or defendant, is not a deciding’ one, but that the controlling’ questions are the second and third propositions. This conclusion makes it a useless task to state the evidence at large relating to payment and brings us at once to the remaining propositions — propositions that depend upon common facts and hence may be considered together, as they are in the next paragraph.
II. Jackson Creamer’s true given name is Jacques, commonly called “Jack” by his, plain Missouri neighbors, and dignified as “Jackson” for court
The case stands clear of any fiduciary relation and the solicitude and jealousy with which courts of conscience watch and pry into such relation [Stitt v. Stitt, 205 Mo. l. c. 166] cannot be invoked to aid plaintiff.
In 1882 or 1883 their mother deeded her home— the land iu dispute — to Jacques. Her record title was somewhat cloudy. At the time of the trial Rosalie was seventy years old. He, we gather, was also old. The land was broken and thin, in 1890 worth possibly $2,000 or $2,500 with a clear title. Jacques resided on it in 1890 as a bachelor. Avoiding details, the record discloses that during thát year and before he became entangled in an intrigue with his housekeeper and through sinful inadvertence or evil concupiscence became much “battered in the wars of Venus,” to borrow for use the figure of a distinguished judge. As a
It is alleged in the bill, faintly suggested by plaintiff’s proof and denied by defendant’s, that the scheme finally carried out was hers, that she induced Jacques to make the deed. But we do not find it so, nor did the court below find it that way. It was Jacques, not she, who was stung by the nettle of dan'ger. It was his affair, not hers. His eye, not hers, was looking this way and that for, the path of safety out of the brambles of trouble. His, not hers, was the first abortive plan; and undoubtedly he it was that fell upon the second plan as a dernier resort. That she fell in Avith it does not alter the fact. Adam’s old and discredited ruse of shifting the blame on a woman must be strongly supported by the proof to be favored in á court of justice.
While there is a divergence and conflict in the testimony on the payment of the consideration, yet there is none on the fact that tbe physical custody of the deed signed by Creamer, duly acknowledged'and recit
It is asserted on one side and denied on the other that the deed was to be recorded. Ye deem that issue immaterial; because, if never delivered, it never became operative as a conveyance and, in that view of the •case, its record created a cloud on plaintiff’s title removable in equity. If, however, it was in truth and in fact delivered, then the title passed and its mere record (standing alone) caused plaintiff no injury and •gave him no cause of action. [Cook v. Newby, 213 Mo. 471.] Hence, the real question resolves itself into the delivery of the deed.
The bill contains an allegation that the deed was “executed.” Now, to speak of a deed as executed means in law that it was signed, sealed (when that is necessary), acknowledged (when that is necessary) and delivered. In a broad way, then, the bill alleges delivery. But the context is of such sort as to show the pleader did not mean it that way. He states in effect that it was not to be delivered — that plaintiff did not lose dominion over it but that it was to be handed back to him at his request. There is testimony sustaining that averment. There is very strong testimony the other way. We are constrained to disagree with the learned chancellor in his finding that there was no delivery. We base our conclusion not only on what seems to us the great weight of the credible oral testimony on that point, hut on another and controlling fact, vis.: that delivery toas essential to consummate the admitted fraudulent purposes of plaintiff. He started out to do that very thing, to-wit, commit a fraud. What stopped him? Is it supposable in reason that a grantor who starts out to make a deed for the avowed purpose
We think it must be held there was a delivery of the deed and this is so although it may very well be there was an understanding the title should be conveyed back when the clouds rolled by, if ever. But, observe, an agreement to convey the title back assumes the fact that the title had once passed, and that is fatal to plaintiff’s theory of no delivery.
Learned counsel for plaintiff rely greatly on Bunn v. Stuart, 183 Mo. 375. At first blush that case is favorable to their view. But well looked to, it is not so. We have read the opinion painstakingly. We have examined the pleadings, abstracts and briefs preserved in the judgment roll of that ease. The most to be said is that it has some features in common with the case at bar. But theré were other features distinguishing that case from this. In that case an old man had made a will devising certain property to his daughter. Becoming discontented with that form of disposition of the land, he concluded to deed the property directly to her children. These deeds, with others executed about the same time to his own children, were in the nature of a testamentary disposition of his real estate; He held all of them for several months. He then married a third wife and trouble subsequently arising between
After the record of the deed, plaintiff married the Kuhey woman who has since died. There is some evidence sustaining the averment in the bill that, not knowing the deed was of record, plaintiff asked to have it returned to him. There is also evidence that after the deed was recorded plaintiff demanded back a quitclaim deed which was refused, but we deem none of these features decisive.
Finally, plaintiff must be denied relief because of public policy — he does not come into a court of equity with clean hands. He is confronted with the related maxim that where the fault is mutual the law will leave the case as it finds it (In pari delicto potior est conditio, etc.).
There are exceptions to those maxims, but none of them avail this plaintiff. The maxim that he who comes into equity must come with clean hands is a cardinal one. It touches to the quick the dignity of a court of conscience itself. Hence, its application does not depend upon the averments of the pleadings, or the wish of counsel, but it may be invoked and applied,
On this ground, too, defendant should be denied affirmative relief on the averments of her answer, even if those averments are sufficient to entitle her to such relief (on which question we do not pass).
The parties litigant made their bed — an unclean one — let them lie in it. Equity will not make it over. She is a handmaiden to Justice withal, but her precept is John Wesley’s, “Cleanliness is indeed next to godliness.”
There was evidence in the case on behalf of defendant that plaintiff was her tenant paying rent from time to time in wood, hay, etc. There was evidence to the contrary. The evidence on both sides on that behalf was put in on the issues of payment and delivery and not on any issue of the Statute of Limitations and title created by adverse possession, if any, since the execution of the deed.
We deem it proper to say that an issue of title by adverse possession since the execution of the deed is not involved in this suit and is, therefore, not passed on.
The judgment is reversed and the cause remanded with directions to dismiss plaintiff’s bill, such dismissal to carry with it defendant’s cross-bill in the form of an answer asking affirmative relief.