107 Mo. 101 | Mo. | 1891
The petition contains two counts. The first is ejectment to recover about twenty-eight acres of land in Andrew county. The second is in
The answer was a general denial, and a special defense in which it was set up that defendant paid the full amount of the purchase price for the land, a part of which belonged to his brother, Jesse Hall who was then absent from the state; that he bought the land for his own use and'benefit; that he had lived on it, making it his home from the date of the purchase to the present time; that at the time of purchasing the land plaintiff was an infant, under two years of age, paid no part of the purchase money, and no deed was made to him or for his benefit. The case was tried to the court without a jury.
The evidence shows a state of facts that do not commend plaintiff for his filial regard for his father. It shows that for some years prior to the d ate of this deed defendant had lived on this small tract of land presumably as a tenant; that on that day he bought the land from Beecraft, for which he paid him $560, which appears to have been about all his possessions. When the deed was written, defendant directed the writer to insert the name of Jesse Hall as grantee therein. This was done, and the deed delivered to defendant, who retained it until about 1870, when he erased the name Jesse, and inserted instead that of John, thus making
These facts are substantially undisputed. Plaintiff testified that prior to 1860, himself and his brother Jesse had worked together dividing the earnings; that his brother left home in 1860, leaving in his hands some property, the proceeds of which constituted a part of the consideration paid for the land, and on that account he had the deed made to him in 'order to secure this money ; that hearing of the previous death of his brother he changed the deed. The evidence, however, that the deed was deliberately made to the plaintiff, then under two years of age, we think greatly preponderated.
The court gave some and refused other declarations of law, but as the defense was equitable the legal questions can be considered without getting out in detail these instructions. The court gave one declaration of law to the effect that, if the defendant at the time intended to make the deed to his brother Jesse Hall, the finding should be for defendant; and refused one asked by defendant to the effect that the evidence failed to show such a delivery of the deed to or for the benefit of plaintiff as was necessary in order to vest the title in him. The court also gave a declaration that, if the deed was not made to plaintiff as an advancement, he could not recover. The verdict and judgment were for plaintiff and defendant appealed.
I. It is evident from the finding upon the declarations of law given and refused, that the court found these facts, first, that defendant intended his child Jesse as the grantee in the deed,- second, that the deed was intended as an advancement to plaintiff; and, third, that there was a sufficient delivery to plaintiff.
II. Defendant insists that under the facts and circumstances in the case no delivery of the deed to plaintiff or anyone for his use was shown, and consequently the jury should have been directed to return a verdict for defendant, as prayed by him. This contention is entitled to a careful consideration in view of the fact that no case is found in the decisions of this court presenting precisely the same state of facts. The general rules of law, applicable to the delivery of deeds, are well established and may be briefly restated.
, To operate as a complete and effectual conveyance of land, a delivery of the deed, actual or constructive, by the grantor and an acceptance by the grantee, or by some one for him, are essential requisites. These are the final and crowning acts in the conveyance, without which all other formalities are ineffectual. The grantor must part with the deed and all right of dominion over it, intending that it shall operate as a conveyance, and the grantee must accept it. Standiford v. Standiford, 97 Mo. 238; Huey v. Huey, 65 Mo. 689; Taylor v. Davis, 72 Mo. 291; 2 Greenl. Ev., sec. 297; Tyler v. Hall, 106 Mo. 313.
Under these rules there can be no doubt that Bee-craft, the grantor in the deed, when the same was given into the possession and control of the father of the plaintiff, who was named as grantee therein, parted with all control and dominion over it, and the delivery, so far as it could be made so by the intention and accompanying acts of the grantor alone, was effectual,
The deed in question was unconditional in its terms, and, at the time it was executed and given into the hands of defendant, plaintiff was less than two years of age, and was wholly without discretion, either to accept or reject it. Under such circumstances the deed being beneficial to the infant, the rule is almost universal that the acceptance will be presumed. Tobin v. Bass, 85 Mo. 654; Rogers v. Carey, 47 Mo. 232; Palmer v. Palmer, 62 Iowa, 204; Bryan v. Walsh, 2 Gilm. 557; Spencer v. Carr, 45 N. Y. 406; Masterson v. Cheek, 23 Ill. 72; 3 Wash. Real Prop. 284.
It is not held to be essential to constitute a valid delivery that it should be made to the grantee himself. It will be sufficient if made to another person for his use and an acceptance, in some circumstances, will be ‘presumed. ' Standiford v. Standiford, supra. In the case of infant grantees, who are themselves incapable of accepting a deed, a delivery to, and acceptance by, the parent will be a good delivery to the infant, and if beneficial an acceptance will be presumed.
Some cases have been cited by counsel for defendant in which the acceptance of a deed was held insufficient, the delivery having been made to third parties. We are unable to see that these cases announce a doctrine different from that announced in the foregoing decisions. The strongest case cited is that of Moore v. Flynn, 25 N. E. Rep. (Ill.) 844. In that case, Mrs. Leet bought and paid for the lot and her daughter, Mrs. Plynn, was named as grantee in the deed. Upon execution of the deed it was delivered to Mrs. Leet who retained it for some time and returned it to the grantor by whom it was destroyed, and a new deed made to the children of Mrs. Pljmn. Mrs. Plynn had no knowledge of the first deed. The court held that there was no acceptance of the deed by Mrs. Flynn, remarking:
This conveyance was made to plaintiff by the positive and unequivocal directions of defendant. It took effect and the title passed to the grantee upon delivery, and no subsequent act or intention on the part of defendant could divest it. Parsons v. Parsons, 45 Mo. 265.
The conclusion being irresistible that the (leed was intended, by both the grantor and defendant who paid the purchase money, to operate as a transfer of the title to plaintiff, the next inquiry is whether it operated as a fee-simple conveyance and as an advancement, or was there a resulting trust in favor of defendant. The rule is that where one pays the purchase money, but the title is taken in the name of a stranger, the party taking the legal title will, under certain circumstances, hold the title in trust for him who paid for the land. The presumption of a resulting trust in favor of the purchaser is rebutted in case the conveyance is made, under like circumstances, to one to whom he is under some moral or legal obligation, as wife or child. In such casé the conveyance will be taken to have been intended as an advancement. Darrier v. Darrier, 58 Mo. 226; Whitten v. Whitten. 3 Cush. 191; 2 Story, Eq., sec. 1201.
There are many circumstances which to our minds tend strongly to rebut the presumption that the conveyance in this case was intended as an advancement. So far as appears from the record this was the bulk of the property owned by defendant at the time ; a part of the money used belonged to his brother ; he had lived on this little tract previously, and evidently bought it for a home for himself and family; and no provision was made for his wife or other members of his family. The disposition of all his property for the benefit of one child is not consonant with common sense or common justice. If the conveyance was intended to carry with it a trust in favor of plaintiff it could make but little difference whether the deed was made to brother, or son of defendant. The principal difference would be in the fact that the burden of proof, to establish the trust in the child, would rest upon defendant, while a presumption of a trust would exist if the legal title had been taken in the brother.
It is true a declaration of law was given submitting the question of fact, as to whether the deed was made
A judgment in a civil case should not be reversed for a failure of the court to give all appropriate instructions ; indeed, it need not give instructions in such cases at all unless requested, but as the answer in this case presented an equitable defense and the issues were tried to the court without a jury, the instructions indicated the theory upon which the case was tried and we do not think the question of a resulting trust’ was given the investigation it deserved, and we think the case should be retried. Judgment reversed and cause remanded ; defendant to pay costs of this court.