2 Mo. App. 317 | Mo. Ct. App. | 1876
delivered the opinion of the court.
The petition states that, from the 9th day of April, 1863,
The answer, after general denials, affirms the genuineness •of the deed mentioned, and its sufficiency to convey the title of plaintiff to defendant. For a second defense it alleges that, on or about April 9, 1863, defendant’s husband, Michael J. Kyne, since deceased, was owner of the real estate described in the petition, and, with defendant, his wife, executed a deed conveying the same to plaintiff; that this conveyance was without consideration, and was upon the express understanding and trust, then created and agreed upon by the parties, that plaintiff was to hold the naked legal title for the sole use and benefit of the said Kyne, and would reconvey to him, or to any other person, upon his request; that said conveyance was made, not to hinder, delay, or defraud any. creditors or other persons interested in said estate, but only because the grautor was a person of pronounced. sympathy for the cause of the Wmcd rebellion then in progress against the government of the United States, and feared that the authorities of said government might undertake to confiscate his property on account of his said sympathy — the plaintiff being, at the same time, an obscure person, not likely to be molested on .account of his political sentiments; that plaintiff never exercised any acts of ownership over said real estate ; that the taxes were regularly paid by Kyne ; that, on February
The Circuit Court, in special term, decreed for the plaintiff, declaring the deed of February 10, 1873, to be void, divesting all title to the land out of the defendant, and vesting the same in the plaintiff. This judgment was reversed in general term, whereupon plaintiff appealed.
In the course of the trial the court required the defendant to elect between her two defenses, ruling that she “ could either deny the forgery only, or-could, admit the forgery, and amend so as to make the answer a cross-bill for relief, on the ground that Keane was a mere trustee for Mr Kyne in regard to the laúd in suit.” This was error. -There: was no inconsistency between the two defenses. They might be equally true in point of fact. It is only when, if' one defense be true, the other must necessarily be false, that a party may be required to elect upon which he will stand.
The defendant here refused to elect as required, whereupon the court refused to hear any testimony in support of' the second defense. . It is argued for the plaintiff that this action by the court was right, because it appears that the-deed of Kyne to the plaintiff was voluntary, and made with a fraudulent intent. Authorities are cited to show that no-relief against such-a deed can be obtained by the. grantor. But they fail of application to this case, for the reason that no fraudulent intent is here apparent. The Federal government could assert no claim to Kyne’s land, by reason of his. sympathy, of whatever description. His groundless apprehension , growing out of a misconception of his legal rights •and of the fundamental principles of our beneficent form of' government, might convict him of inexcusable ignorance. But this, although the country may have been at the time
The question, how far a voluntary conveyance, not affecting, directly or indirectly, the rights of any third parties, may be treated as raising a resulting trust in favor of the grantor, has never been clearly determined in Missouri. The English doctrine, as applied to common-law conveyanees, holds that á man cannot be supposed to part with his. property without some benefit to be derived from the act and, as he gets no other consideration, the presumption arises that he is to enjoy the use of the land in the hands of his grantee. American statutes regulating conveyances of real estate, including the statute of frauds, have given rise to many nice distinctions, and some contrariety of views, upon questions similar to the one directly concerned here. By some courts a material point is made upon the presence or absence of a general warranty in the deed. The record in this case contains no copy of the deed of 1863, nor any precise information of its form or contents. It would, therefore, be impracticable, even if desirable, for us to pursue the analogies and develop the analysis which would be essential to a satisfactory solution of the inquiry. The demand for such an undertaking, however, is really superseded by the. conclusion we reach upon another point in the case.
Proceeding to consider, as is proper in chancery cases, the force of the testimony adduced on either side, with reference to the execution of the deed from plaintiff to defendant, we find it impossible to concur in the relative estimates adopted by the Circuit Court. In proof that the-deed was fairly executed and delivered, we have (1) the direct testimony of the defendant, given from her personal knowledge of the fact; (2) the certificate of acknowledgment, with the official seal of the notary public; (3) the testimony of experts, accompanied by unusually
If the plaintiff’s denial be true, it could be quite as much ¡so without the wounded arm. The great prominence given to this minor fact is little calculated to help the denial. Under the alleged circumstances of Kyne’s conveyance, in 1863, he might well have thought it prudent to have a deed from Keane, duly signed, long before the time when the date was to be filled in and the acknowledgment taken. Considering how frequently deeds are actually signed on days more or less removed from their written dates, the grantor’s inability to write on a particular day can have little weight against the notarial seal and certificate of his acknowledgment. This invites an examination of the more direct testimony on either side. The plaintiff’s emphatic denial of his signature might have been quite effective but for the extraordinary statements by which it was accompanied. He said :
“ In 1863 he (Kyne) deeded that land to me. My wife paid him some money for it. So she informed me. I don’t know how much. Don’t know whether it was $1,000, $500, or $300; think it was about $250. * * * I don’t know where that deed is now. Mr. Kyne never gave it to me. The reason I never got it was I never asked him for it. I had no talk with Mr. Kyne, before the making of that deed of 1863, about buying that land. * * * I never sent John to pay the taxes before Mr. Kyne’s death.
Here is a bona fide purchaser of real estate for a valuable consideration, who is yet so indifferent about the details of his purchase, and the enjoyment of his property afterwards,
These proofs of the plaintiff’s indifference might go far to excite a suspicion that he was also unmindful of the circumstance of his having signed the deed in question. They at least fail, with reference to his direct testimony, of that conclusive corroboration which will sometimes turn the scale between the opposing statements of respectable-witnesses.
The direct testimony upon the other side of the issue embarrasses us with no such strain upon an ordinary fund of credulity. It may be that the plaintiff, as he testifies, did never execute the deed to Mrs. Kyne which he here asks to have canceled, but the preponderance of the testimony to the contrary is, in our estimation, conclusive of the whole case. We therefore affirm the general term’s-