*1 Ferguson and judgment remanded. reversed and cause Sturgis, CC., concur. Hyde C., adopted PER foregoing’ opinion CURIAM: The opinion judges All concur. as the the court. wife, Appellants,
Samuel H. Jones and Jones, Hilda Adell (2d)W. 555. et al. 66 S. Pearl Jefferson One, December 1933. Division appellants. Freeman L. Mwrtin *3 <$>Grand for Pearl Jefferson and A. W. Jefferson.
Greensfelder STURGIS, plaintiffs, husband wife; C. The have appealed judgment a final rendered for defendants after- the’ trial court petition. sustained defendants’ demurrer to the object had setting’ obtain a decree aside' a deed plain- the suit is to executed conveying Jefferson, daughter Pearl to defendant a tiffs of the first plaintiff, city certain described real estate in named St. Louis. an interest in question defendants have The other land-in but are materially in the result of interested this-suit. The.-sole is whether on the facts in- petition for decision here stated the- prayed' to the relief for. plaintiffs are entitled The -trial court held judgment, are asked they not, and we to reverse the are neсessary determining this-question It is consider and' take in mind allegations pétitibn, keepings true the fact contained in the' they1 exe plaintiffs, strenuously now claim that theí-déeff accepted now to on cuted and ask to be set aside was never delivered* be controversy Pearl here is -the defendant Jefferson-. The real Jeffer plaintiff,- daughter, H. Pearl Jones, tween Samuel a and his defendant, shall and de son, plaintiff and we refer to them as respectively. fendant July alleges: 14, petition prior That
In substance the on and H. 1927, Jones, plaintiff, possession Samuel was the owner and 18, plaintiff recently, January in question; of the land that said had coplaintiff; marriage prior married his to such he was keeping company woman;” and “was with another widower negro, pastor in* plaintiff, a of a colored church- St. Louis- and ‘‘ keeping: company the woman with he was was a member of whom woman) church; (another that the woman whom he'married his ’’ church; plaintiff’s marriage a member оf said that after his also this coplaintiff promised “the other.woman claimed that had ’’ failed, neglected- her,. marry so, and had and refused to do which, complaint church,-, investigation, had made dis- church-; as-pastor .plaintiff proceed- that all these missed ings and, June, May in-July, thereafter place took n thjfcit- - woman, plaintiff, who said other claimed Samuel marry her, bring threatened to Jones, promised had a 'suit H. agamst ‘promise him. It was under these circum- breach agreed allegеs, plaintiffs these
stances, between by- plaintiff that- said real estate owned -“should be themselves daughter Jefferson, Pearl form- transferred reconveyed marriage, convenience, request;” *4 upon to to them er for daughter, defendant, called- his who plaintiff that lived Mem- long telephone Tennessee, distance phis, over to come to St. Louis having once, explain “that he was- some trouble which-he would- at arrived;” Louis,and that forthwith defendant came to St. when she plаintiffs, “explained*to (defendant) father presence of her her in the promised to-marry that woman claimed he had her that a certain church; complaint and'that now was and had she threat- promise against him; ening a suit breach of and' that' he to file convey convenience, the described real estate to her for to wanted reconvey.it request;” him" on that-the: de- that she should and defendant, husband, nothing, also a should know about fendant’s daughter (defendant). agreed this; then and there to accom- that whereupon “plaintiff and plaintiff, defendant went to an modate the attorney’s explained request- the aforesaid facts'to him and officeand conveyance attorney property, draw a deed of to said which ed said done; accordingly plaintiff then- and that there executed said attorney; that the presence of said father handed in the said' deed attorney requested and that he executed deed to said record sаme when him, daugh- and recorded to return said deed to to which said attorney assented; ter that said did have said when deed recorded and attorney it was to him kept returned the recorder said said deed it, plaintiff in his officefor several months before the said called him; paid when it was delivered to that the father all the fees to ” n ' drawing, acknowleding recording and deed. said petition copy The then sets question out of the deed in and it say warranty will suffice that is an unconditional common deed form, 14, whereby July 1927, plaintiff, Jones, dated H. and Samuel bargain, Jefferson, grant, wife sell Pearl defendant Tennessee, Memphis, in consideration of one hundred dollars and question. “other valuable considerations” the land now in grantee The duly is to The pay taxes for and thereafter. deed is The acknowledged July 1927, notary 14, public on in St. before Louis. certificate thereon shows that it was filed and recorded recorder’s The July 15.,1927, pa'ge .in Book at 474, in the recorder’s office. alleged plaintiff’s request It is that at then further instance and Jefferson, defendant, Pearl and husband later executed a deed property building association, of trust on said and loan property, pre- made' a order refinance the sumably paid plaintiff the interest and on dues this loan out of the alleged length some rents. It* is at defendant still also later fraudulently procured plaintiff assignment to execute an of the rents plaintiff said while property on defendant about die аnd transacting incapable business, assignment and this rents delivery main asked to be set As the at issue is the aside.. n deed, apparent warranty is- whatever occurred after little, any, -bearing if have on such that -issue and we alleged .would petition. part plaintiff The also omit after been and was to him, said deed recorded returned the defendant had February and while was sick hospital, and in the wrongfully knowledge consent, without possession obtained recorded, refused to has return the to him. sаme alleges that petition further after said property was con- aforesaid, plaintiffs veyed to Pearl Jefferson as had the absolute and management possession, control and premises, exclusive of said col- lecting profits property all rents said paying ánd all re- every pairs, placed against it; taxes and assessments of' nature management possession, control and said said has been - uninterrupted from the time of said exclusive signed February assignment said whеn release or hospital; at plaintiffs of rents as said aforesaid no'time have *5 any report anything or- or either of them delivered to said de- them; of neither-have said or either or fendants defendants either of plaintiffs requested, demanded'of any therm to make report of the of the said-premises conveyance and income since profits the aforesaid tbirty-one July 14, 1927, about February 19, 1930, period of months. the agreed between mutually Plaintiffs further state that was plain-
plaintiffs daughter of defendant, Jefferson, and said the Pearl con- tiff, Jones, Samuel H. of deed and said before the execution veying was property deed said to said Pearl Jefferson before said and title attorney recorded, delivered "that the to said and him agree- property acts and pass,” said should not that all of said but and fully special benefit ments hereinbefore set were for the out agreement plaintiffs, of convenience of the and that it was a said pаrt attorney that parties said presence between the said made in the of n exclusive, plaintiffs absolute should continue have the uninterrupted management property of control,’ possession and said conveyance assignment making date of of said said of the rents. annulling prayer setting petition aside,
The of the is decree canceling divesting the the deed mentioned and title out de- of vesting fendant, Jefferson, husband, plain- in Pearl and her same tiffs. may case, petition else filed in this said of the Whatever
attorney stating drafted the same been candid in the facts. who has question question or not of whether the in was delivered deed This question court, plaintiff, is a 'mixed of law and fact. as well as pass whether there of the deed so as determining stated, defendant, bound the facts but in title from attempts drawn from pleader to state the conclusion sofar so transfer fact that the -deed was not delivered as to effectuate a such defendant, binding title such conclusion is not on this court. petition,"we 'Considering facts' as stated in the think is that be drawn therefrom the' deed conclusion to Delivery validity essential of a as a transfer delivered. Any or act which title. All so held. statement the'authorities grantor
clearly' unequivocally manifests intention apt with words of and transfer deed in form and his due acknowledged, title, presently operative shall become signed and delivery. 197; recall,- beyond constitutes C. J. his and effective [18 86; Hall, 227 Mo. 127 W. Hall v. Chambers, S. v. Chambers 811; Standiford, 97 Mo S. W. Standiford 107 Mo. l. c. W.
10 S. 836.] plaintiff, because petition here makes clear Now the dividing lady courtship his between two mem past his conduct in to one threatened congregation; his found himself married bers other; he p’rbihise suit result a breach of with such result and beat the case justly feared, order forestall coplaintiff agreed plaintiff avers that he' his be execution, should be "transferred” his tween themselves (to him), convenience to be daughter; "recon- *6 veyed” plaintiffs'when they to requested. It will so desired-and be formulating' observed that the part defendant no in this had scheme,and nothing plaintiff knew about it till her to come called Louis, to St. explain that he ivas in trouble and ar- would on' her rival. On her arrival plaintiff explain there the- his did- nature of trouble and that promise. he was about to sued- breach be Plaintiff then told convey property defendant that he wanted to “convenience,” to her evidently being the convenience to either breаch; deter the woman her prosecuting promise' suit, other or, came, if the worst execution, to beat' her on and’ that defendant reeonvey should property request. him the on Defendant assented Now, proposition agreed to this “and her accommodate father.” knowing scheme, the to-wit,' to property transfer and the purpose, to-wit, its reconveyed and it to plain- have request tiff at danger his over, when the was us let consider how and to what extent this plaintiff was сarried into effect. The and ‘‘ conveyancer defendant went attorney to an and explained and the requested attorney facts” prepare the a deed of did, property, to said which plaintiffs he executed in the deed presence; his plaintiff then attorney handed the deed-to the and re- quested attorney to record the same recorded return and.when plaintiff. attorney the deed kept did this and the recorded plaintiff it, given (“delivered”) deed till the called for it when was course, to him. Of the deed could not be “delivered” to him in- a legal sense, since, according plaintiff’s contention, it had never Toy been delivered Mm. apparent any
It is if that there delivery time-a of the deed conveyance, so to make effective as a such delivery inwas con recording, with its execution and- anything nection with done in deed or under or connection with it only- thereafter could be considered, if doubt, there was as to whether' the deed think, not. however, had been delivered We there is no doubt but delivery legal facts stated constituted a that the sense of mak ing conveyance, effective hence the plain fact that possession tiff had of the recorded deed after its until record de wrongfully got surreptitiously possession, fendant it, that possession property in- question; he continued- collected the rents, etc., property own, and treated the as-his does1not show that , C. J. the deed was delivered. 208.] [18 delivered, The idea that the deed never is, never be as a transfer of the came effective title this land to defendant, plaintiff’s allegations totally, with plaintiff’s inconsistent as to executing recording making, Bearing intent in same. in mind of- was “in trouble” because threatened breach alleges wife, suit, he his' promise coplaintiff, minds, up their agreed, is, should be only defendant, accomplished could “transferred” “reconvey” deed, and that same .to defendant would them, only was vested which would and could after title be done purpose prepared defendant. The deed was for this and executed and. for plaintiff-- no other it to be recorded-as a cause did *7 public plaintiff’s muniment of All initiative this was done on title. allegation in it order to make his intent effectual. Plaintiff’s that agreement was between the him and “that the title to property pass’’ of pleader said should not is a mere conclusion the of war plaintiff, based on a secret intention at with the purpоse overt acts and the and intent to transfer con- and declared agreement vey property the to defendant under an that she would reconvey plaintiff tO' a later it date. Bivert,
The Creamer v. Mo. 113 S. W. case object its facts, except like this both in and on the that much one .by. by plead- shown the is here admitted what was there the: evidence by plaintiff a suit to a de- ings. That was set aside deed to practically the same circumstances and for the fendant under same by The сourt there said: was as here. “He the woman purpose sued marry. damages promise time, for breach to At that his out, him he in lines. The fall- having hard evidence sins found by beyond in put and his witnesses showed ing lips his cavil suit, and,- casting, a result of civil that he feared the about or doubt plan circumventing way out, he conceived the for a the woman him ’’ And, here, real estate. there was fraud of his no- by disposing inducing part in the deed to or-wrongdoing on defendant’s be made. refusing subsequently in defendant’s any, if to do wrong, .was compel do, reconvey her the seeks to this suit' what recorded, it the deed was but was claimed In that case
plaintiff. agreement having the in violated that that defendant plaintiff immaterial; said: “We deem that issue to that the court done, and delivered, operative it never became as a if because, never record created a case, plaintiff’s its cloud on of the that view and, in If, however, it was in truth in equity. in and fact removable title alone) and its record passed (standing mere the title delivered, then gave him injury no cause of action. no caused [Cook question Hence, real resolves itself 213 Mo. into Newby, 471.] disagree We are deed. constrained delivery of. finding delivery. no in his there was chancellor learned with only great weight what not seems to us conclusion base our We point, testimony on that but on another and con- oral the credible delivery was essential to consummate ad- 'viz.: that fact, trolling tp plaintiff. He started out dо purposes mitted .of fraudulent stopped sup- What him ? fraud. Is to-wit, a coinmit thing, very that, a-grantor who a starts out make deed'for in reason posable (absent twinge a fraud would perpetrating purpose, avowed obstacle) midway-in halt his career of covin visible of conscience thing identical he set yet do, do the out to’ approach to-wit, grantee by his consummate the passing fraud title delivering doing, nothing done? something yet the'deed? Was Henither within fraud perpetrated delivered that deed or else he where, fraud, i. when the e., put grantee in fix he himself and the justice worst worst, they came to the both could a court swear theory Why that'the latter pick deed delivered. we should preference contemplated perjury to the former and thus add the fraud? think it W'e must be held there was a although may very this is so well was an be there under- standing conveyed by, the title should back when rolled the clouds observe, if But, agreement an back ever. the title assumes рassed, plaintiff’s title had once is fatal fact theory delivery.” of no put In case claimed that the deed was of record agreement without his defendant consent and in fraud of her not to it. case, plaintiff’s record Inlthis in' addition to averments that intent, executing the deed in was to transfer *8 convey purpose the land to a that not and plished could be accom delivery deed, outstanding of the there is the
except
fact
fully
plaintiff voluntarily
that when the deed
carry
executed
and to
legal
purpose
place
out his
title of the
in de
fendant,
put
-the deed
be
recording
caused
of record under our
placing
It has been held that the mere
a deed of
acts."
record does
Goodwillie,
necessarily
conclusively
delivery.
show
McCune
not’
v.
306, 338,
04
.05 (cid:127)CJ1 though it remain in the As -to the possession maker.” this; act, recording court registry and effect of a deed under our livery early day an Perry Price, said in Mo. 555: “But objects .livery seizin supplied registry. of of seizin is to be of. testify were, might notice and country common law take that the might know estate, the transfer of and that such claimed title ] ,we Thus against bring whom to Bl. Com. their action. [2 311. livery may great is, object see .seizin that one the law in of of n pur be of may' known who is the So men know whom owner. .from chase, may neighbor’s.rights distinguish be their able to n effected, .livery. of
their if this without own. But useful can be end .no, form seizin, satisfied; will be law is the law for the not farther necessary of- the right. of purposes than is to effect the- The act shall Legislature provided-that concerning-lands of all deeds manner;, if.-they being proved be recorded after a certain against they adjudged subse are not so recorded shall fraudulent quent By aсt, public purchasers for this a. valuable consideration. deeds, everybody may recording to be to. kept officeis resort neighborhood, lands, only ascertain the owner all the county. livery object largely in the is .more
but of seizin Here the, fact,-of livery completely '-by effected be done than could In “In this Chambers, supra, itself.’’ Chambers v. court said: plaintiff-made, acknowledged ease it stands conceded and're . registry . . is to make corded the deed. The effect of our act place significant common-law the record of a deed ceremony take ' livery proclamation It is a solemn seizin. a, world, notice, has..been, of which the there world must take grantor grantee, precisely transfer title -to the .in olden symbolical .'twig, of a public -by times there was a transfer .a *9 key. holding early [Perry State. v. clod or a Such was the in this Price, . 1 Mo. . are too-solemn . Deeds of. record much 555.] away with of testi and stable instruments to be blown a breath .mere stringеnt mony, hy falling the char or overturned short of evidence Derry Fielder, 191, 115 176, v. 216 Mo. indicated.” acter [See S. history significance: When we consider W. the .of 412.] the ceremony livery transferring;title.,.to public of'seizin in solemn of ,a registry recording by,-the land, the and that under our of deed 'acts grantor force place takes of and has .the himself the effect of requires' livery certainly the seizin, of it more than mere .assertion show, pass of in order to a a secret intent that title should lack the dеlivery of of the deed. plaintiff’s force contention that any We not see in do ther.e grantee thing essential acceptance of this deed the to
was no —a alleged validity. only in the petition its It is not that defendant acquiesced plaintiff’s consented and in scheme transfer and- assisted, by least,, presence'-at. her this to her the - deed, agreed ireeqnyey recording making the but -of she 616 conveyance her, request. only accepted She not the holding conveyance
but she is onto it. has also ratified the She subsequent her her J. acts, C. that is sufficient. 212.] [18 reconvéy agreement repudiated alleged The fact that she the plaiütiff conveyance. the in and of of acceptance itself shows an (the grantees acceptance “Aside from the presumption an of conveyance arising being advantage), implications to their subsequent their that score.” actions and doubt on conduct leave no Chambers, King (2d) 980; v. (Mo.), 30 v. W. Chambers S. [Deer 227 127 Mo. S. W. 86.] Having question was delivered determined that the accepted by defendant, equally it is clear defrauding plaintiff’s
to defendant was of violate would creditor. To allow recover in this case equity must equity of the maxim of that he comes into court who case, supra, come Chambers with clean hands. This court said hand chary reaching helping equity of out a that “courts are of predieamént litigants voluntarily put themselves in those who hinder, delay, or plaintiff by voluntary conveyance land to Williamson, 166 Mo. l. c. . . defraud creditors. . v. [McNear ” 473, 113 214 In case of Mo. Bivert, v. Creamer 365.] S. W. said: which, said, facts; this court is like this case on the we have policy— public “Finally, plaintiff must relief because be denied He is equity with clean hands. a court of he does not come into mutual fault confronted with the related maxim that where the pari potior (In delicto est finds it the law will leave the case as it conditio, etc.). maxims, exceptions but none There are to those equity into maxim that he who comes plaintiff. them avail this one. It touches is a cardinal must come with clean hands Hence, applica its dignity itself. quick court of conscience or the depend upon pleadings; averments tion does not motu, by applied ex-mero counsel, may invoked and wish of but if ground, no may . this . . well rest on court. The case Williamson, 166 115; Balch, v. v. 69 Mo. McNear other. [Poston v. 160; Holliway, 392; 77 Mo. Hobbs Holliway W. v. 358, 66 Mo. S. ” holding too numerous are Boatright, 195 The cases so Mo. 693.] 122; 115 and J. secs. C. debatable. to leave [9 , 160; v. Keener 358, 365, 66 W. S. Mo. McNear Williamson Fielder, Mo. 489; Derry v. 707, 271 W. Williams, 307 Mo. S. 176, 193, 115 W. S. 412.] was not .made any suggestion that this deed in the Nor is there force there not shown it is creditors for the reason to defraud *10 anybody. By plaintiff must any debt due by judgment or otherwise. liquidated no debt that there was mean necessary is however, will show that it- cases, reading A owing by plain- debt ascertained liquidated there should be in this case Plaintiff’s debt void. make his deed tiff in order to
617 In supra. Bivert, v. exactly case of Creamer tbe sаme as tbe is -held 156, it (2d) 23 S. W. Pokres, Mo. Snitzer ‘ : for if made creditors tbe deed is .'made to defraud dam- them' sue defeating somebody was about who bad or ages.” sustaining right tbe
Tbe the trial court was de- result Fergtoson judgment petition, is affirmed. murrer to -the and the Hyde, GO., concur. Sturgis, C., foregoing opinion adopted
PER >CURIAM: The judges All concur. opinion as the of-the court. -the Joseph Stanley Talbott, L. of Missouri at the Relation State Talbott, Ruth Bartram Jewell L. Talbott, June Adria Hop Relators, v. Friend, Ola Talbott, Minors, by Next their Ewing Bland, C. H. Trimble kins B. Shain, Francis (2d) 826. S. W. Judges City of Appeals. Court Kansas One, 1933. December Division Raymond apd relators. <& Hume H. Walsh
Walter