146 Mo. 620 | Mo. | 1898
This is an equitable proceeding to establish the priority of a lien of a certain deed of trust made by J. S. Banks to J. D. Crawford, as trustee for the plaintiffs, on certain real estate situated in Pettis county, over another deed of trust made by said Banks for the joint benefit of the Mutual Benefit Life Insurance Company of Newark, N. J., to secure a debt to said company of Mrs. Banks, and to indemnify her on account of having mortgaged her land for the benefit of her husband. Both deeds of trust cover the same land and bear date of April 27, 1893. The latter trust deed, however, was put upon record before the former. The amended petition upon which this cause was tried, as ground for relief, alleged that the deed of trust in plaintiff’s favor was executed prior to the one under which defendants claim, but on the same day, and that defendants had actual notice of the prior execution of the deed of trust for the benefit of the
The answer of defendants, which was under oath, after admitting the execution of the deed of trust to them and the filing of the same for record, denied that J. S. Banks executed the deed of trust set forth in the petition in favor of the plaintiffs, or that plaintiffs had recorded any such deed of trust, or that any such deed was entitled to priority over the deed of trust in favor of defendants, or that they used any improper means to procure the recording of their deed, or that they had any knowledge of plaintiffs’ deed of trust. The answer further averred that at the time defendants received and recorded the deed of trust in their favor, no other deed of trust had been executed or delivered to plaintiffs, but that the defendants, J. S. Banks and his wife, did execute a deed of trust in favor of plaintiffs after the execution and recording of and subject to, the deed of trust in favor of the defendants, but that said deed was executed and delivered to, and accepted by plaintiffs on April 28,1893, andjfhereafter recorded, and that the same was given to plaintiffs for the purpose of securing the debts described in the petition. The answer further alleges that the deed of trust in favor of defendants
The evidence shows that Mr. Banks had been a man of considerable means, dealing largely in live stock and owned several farms in Pettis county and was greatly involved financially. It seems that several of the plaintiffs and Mr. Banks had been in the habit of mutually signing notes for each other. In addition to the money obtained in this way, he had borrowed a large amount of money and secured same by mortgages on all of his farms, but being desirous of raising more money, he made an application to the Mutual Benefit Life Insurance Company for a loan, but they refused to take a second mortgage. Mrs. Banks had inherited a considerable estate, and at this time owned a valuable farm near the city of Sedalia. This was wholly unincumbered and it was suggested that Mr. Banks could obtain a loan from the insurance company if he could secure it upon his wife’s land. The land in question was known as the Groves & Yeater farm, and was already covered by a mortgage. Before this, however, Mr. Banks was contemplating the sale of the Groves & Yeater farm, and in that connection proposed to his wife that if she would mortgage her land to secui’e a loan of $6,000 from the insurance company, he would protect her with this land; that pending negotiations for the sale of this land, the matter would stand over and if he succeeded in selling he would pay off the incumbrance upon her land, otherwise he would give her a second mortgage upon the Groves & Yeater farm to secure the insurance company, and indemnify her against loss by reason of having mortgaged her land for his benefit. On April 1, Mrs. Banks, in1 conjunction with her husband, executed a deed of trust on her property in favor of the
The plaintiffs were holders of, and sureties-upon, several different notes of Mr. Banks. Teater, the surety upon a note of $4,500, was insisting upon being relieved from his liability as such surety and the officers of the Citizens National Bank, and others, had sometime prior to the twenty-seventh of April, undertaken to induce Mrs. Banks to sign this note in lieu
On this state of facts the circuit court found in favor of the plaintiffs and defendants appeal to this court.
In Crowder v. Searcy, 103 Mo. 117, Gantt, P. J., who wrote the opinion says: “The whole object of a delivery is to indicate an intent upon the part of the grantor to give effect to the instrument.” . In 3 Washburn on Real Property [4 Ed.], page 292, it is said: “The act of delivery and acceptance must, from the nature of the case, be mutual and concurrent acts........ Acceptance by the grantee is an essential part of a delivery. Proof of an acceptance, at a time subsequent to that of the act of delivery, would not be sufficient to give validity to the deed, unless the act of delivery be a continuing one in its nature, such as leaving a deed on deposit to be accepted by the grantee at his election........It is an essential pre-requisite, that the instrument in question should be understood by the parties to be completed and ready for delivery, in order to have a mere placing it in the hands or possession of the grantee or his agent construed into a delivery........While, therefore, it is not competent to control a deed by parol evidence, where it has once taken effect by delivery, it is always competent, by such evidence, to show that the deed, though in the grantee’s hands, has never been delivered.”
Plaintiffs also seek to invoke these presumptions in aid of their case, that the possession of an instrument by the grantee, unexplained by any other circumstances, is presumptive evidence of delivery, as the
Clearly, when it is said that the delivery of an instrument is complete when the grantor has parted with his control over it with intent that it shall pass to the grantee, it is meant that the grantor’s intent is to deliver the instrument in the condition in which it is at the time, also that the grantees assent thereto.
On the question of delivery, Mr. Powell testified that about 2 o’clock in the afternoon of April 27, Mr. Ranks came into the Citizens National Bank of Sedalia, and after some conversation touching his indebtedness, the witness presented the deed in question, which had already been written up by Col. Crawford, vice-president of the bank, whereupon Mr. Banks signed and acknowledged it before Mr. Ware, a clerk of the bank who was also a notary public. At the time the deed was signed by Mr. Banks, it was upon a desk'in front of which Ware was standing at work. At the time the deed was acknowledged by Mr. Banks, he stated to Mr. Powell and the notary public that his wife would come in and sign and acknowledge the deed. Banks went out and left the deed lying on the desk and the witness testified that he fully expected Mrs. Banks to come in and sign it. The deed remained in the bank until about 5 o’clock in the afternoon awaiting Mrs. Banks, who it seems did not come in as contemplated. The witness then took the deed of trust and went out to the residence of Mrs. Morrison, with a view of inducing Mrs. Banks to sign the' same out there.
Mr. Ware, the notary public, testified that Mr. Banks signed and acknowledged the deed of trust before him at the bank about 2 o’clock in the afternoon of Api’il 27, that he did not fill out the certificate of acknowledgment at the time because he was
Mr. Scott, who was Mr. Banks’ security on a portion of the debt sought to be secured by the deed of
The recorder of deeds testified that he met Powell as he was going to his office on the morning of the twenty-eighth of April, and that Powell asked him if any instrument made by Banks had been filed for record; that he informed him that nothing had been filed up to the closing of his office the day before. Thereupon Powell gave the deed of trust in question to the witness who took it to his office and marked it filed. Shortly afterwards the witness discovered that the deed of trust in favor of Mrs. Banks had been filed the evening before and notified Powell accordingly by telephone who immediately came to the recorder’s office and requested the recorder to let him withdraw the deed, assigning as a reason therefor, that he “wanted Mrs. Banks to sign it.”
Mr. Banks testified that a few days before the twenty-seventh of April, Powell and Hutchinson, accompanied by Ware, the notary public, came out to his house and said to him that Yeater was vigorously objecting to renewing the $4,500 note in the bank on which he was surety. Banks, who was just recovering from a long spell of illness, told them that he was too feeble and weak to transact any business at that time but for them to go back and inform Yeater that “he
It was doubtless fully intended that the deed of trust was to be signed and- acknowledged by Mrs. Banks before being certified by the notary, and was therefore left with the notary for certification, in case she signed it, and although it was in the bank of one of the plaintiffs, that did not constitute a delivery. No certifiate of acknowledgment had been indorsed upon the deed at this time. It was clearly within the minds of the parties interested in the matter that the deed was to be signed by Mrs. Banks before being certified by the notary public. Clearly then there was no delivery or acceptance at that time in the absence of the signature of Mrs. Banks.
Moreover Powell himself testified that late in the afternoon of the twenty-seventh of April, he took the deed from the desk where it had been left, and in company with Mr. Scott went .over to Mrs. Morrison’s where she was stopping and sought to procure her
In course of the conversation relative to the execution of a second deed of trust, Powell was informed of the deed to the insurance company and Mrs. Banks. They declined to sign or complete the execution of this, deed of trust unless it was made subject to the prior lien of her deed. These conditions were acccepted by plaintiffs without qualification, and interlineation was made in the deed accordingly. At this time the plaintiffs did not consider the deed of trust in controversy as giving them any priority or advantage, and made no claim for such whatever, under the latter deed. When the officers of the bank started out on the morning of the twenty-eighth to procure Mrs. Banks’ signature to the deed, they undoubtedly regarded the matter as unfinished business. This record certainly does not disclose any evidence of an intention to differentiate between the first and second deed of trust, nor to claim priority over the deed of trust relied on by the defendants. Looking at the acts of all the parties to the transaction, when considered in the light of the rule which people of fairness and candor, similarly situated, would ordinarily apply in respect to the matter in hand, our conclusion is that the deed of trust in question was not delivered so as to give it effect as a completed deed. Consequently we are unable to concur in the finding of the circuit court, as was necessary to the decision below, that there was a delivery of the deed to Mr. Powell on the evening of the twenty-seventh of April.
We have examined the other points discussed in the briefs of counsel, but in the view we have taken of the case it is unnecessary to pass on those questions. For the reasons above stated the decree below will be reversed, and the case remanded to the circuit court with directions to enter judgment establishing the priority of the deed of trust under which defendants claim, and adjudge the deed of trust relied on by plaintiffs to be void.