Schooler v. Schooler, 258 Mo. 83

Schooler v. Schooler

258 Mo. 83 | Mo. | 1914

OPINION.

BOND, J.

(After stating the facts as above.) — In this case both parties have a common source of title, the father of the plaintiffs and the grandfather of the defendants. Unless, therefore, the defendants are able to show a valid grant of the remainder in the particular portions of their grandfather’s land, described in the deed involved in this case, they must fail in their defense, and that property, as well as the remaining estate of their grandfather, will be inherited by the plaintiffs, share and share alike. The only assault made by the plaintiffs upon the deed in this case, is that it was not delivered to plaintiff Mm, Yoakum, in the life time of her father, the grantor. The motive of the grantor to make some provision by this deed for the services of his two grandchildren (the two children of Mrs. Cowsert by her first marriage) who remained with the grandfather after her separation from her first husband, is not questioned, neither is it doubted that the provisions of the deed were in exact accordance with the instructions given by the grantor to his attorneys who prepared it. I he only contention of the plaintiffs is the technical one of nondelivery.

The necessity of the delivery of a deed and its acceptance as such by the grantee in order to valid ate the conveyance of land is familiar law. [Miller v. McCaleb, 208 Mo. l. c. 578.] But it is not essential to the delivery of a deed or its. acceptance, that either of these facts should be shown by express terms or by *92direct evidence. Either or both of them may be established by indirect or inferential evidence. [Rumsey v. Otis, 133 Mo. l. c. 95; Sneathen v. Sneathen, 104 Mo. 201; Standiford v. Standiford, 97 Mo. 231; Miller v. Lullman, 81 Mo. l. c. 316; Tobin v. Bass, 85 Mo. 654; McNear v. Williamson, 166 Mo. l. c. 367.]

It is also, the law that the presumption of the delivery of a deed, or its acceptance in ease of voluntary settlement,'is stronger than in a case of bargain and sale. [Rumsey v. Otis, 133 Mo. l. c. 95; Hamilton v. Armstrong, 120 Mo. 597; Crowder v. Searcy, 103 Mo. 97; Cannon v. Cannon, 26 N. J. Eq. 316; Williams v. Williams, 148 Ill. l. c. 430.]

It is. well stated in Cannon v. Cannon, supra, l. c. 319: “To make delivery of a deed, it is not necessary it should be actually handed over to the grantee, or to any person for him. It may be effected by words without acts, or . . . by both acts and words. Indeed, it may be made though the deed remains in the custody of the grantor.”

Tested by these principles of law, do the facts in this case show that this deed, made by Nathaniel A. Schooler to his daughter Mrs. Yoakum, conveying a life estate to her with the remainder to the adult children of her sister Mrs. Cowsert, was delivered to and accepted by the life tenant actually or by relation when the deed was turned over to the cashier of the bank? We think there is no escape from an affirmative answer to this question. The undisputed facts show that when the grantor in the deed decided to make the conveyance, as therein expressed, he went to the office of his attorney for that purpose, and took the husband of one of his daughters with him then, or on a subsequent visit, to receive the deeds after they had been prepared. It is certain that the grantor and his attorney, and inferably the accompanying husband, knew What the deeds contained, and that they were signed and acknowledged, and securely sealed in sep*93arate envelpes, upon each of which was a written statement or description showing the fact of the conveyance and the party to whom it was made. With these in his hands the grantor went to the cashier of a bank where he kept a current account, and placed the deeds in the hands of the cashier, stating at the time, what should be done with them. Unfortunately, the cashier when called to testify, was unable to recall the directions then given to him, hence, as far as regards the matters between him and Mr. Schooler, all that is available is the fact that the sealed deeds were delivered to him containing on each a written statement disclosing by whom, they were made and to whom they belonged. The cashier did testify, however, that he was not the agent of the grantor for any purpose. But the grantor went home and apportioned to each of his daughters the specific tracts of land wherein he had conveyed to them a life estate, and they and their husbands took possession and. enclosed the tracts by fencing them off from each other, and from the remaining lands of their father. For three years thereafter, each of the daughters asserted ownership of the particular tract- which had been put in her possession by listing it for taxation, and with the aid of her husband by cultivating it and by selling the crops and receiving the money.

Their father is shown to have admitted to the assessor that the property conveyed to his daughters was correctly listed by them, and to have completely refrained from any claim of interest thereto in himself. That he notified his daughters where his deeds had been left, is shown by the fact that both of them at his death applied to, and received them from, the bank where they had been left. It would have been impossible without some previous communication from their father, for the daughters to have divined that the deeds to the land, into the actual possession of which they had been placed, had been left for them with *94the cashier of the hank. The inference, therefore, is not only natural but irresistible that the two daughters had been told by their father that the deeds made to them had been put in the bank for safe-keeping and delivery. That he made no secret of his purpose to turn over the deeds as well as the property itself to his daughters,- is also shown by his statements to other persons of the reasons that actuated his conveyance, his desire to equalize his daughters with their brother, and his intention to repay his two grandchildren (born of the first marriage of one of his daughters) for their care, attention, and services to himself, and his further statement that the deeds “ought to have been turned over to them.” It is also impossible to draw the conclusions that the two daughters were unaware of the nature of the estate given to them. For on that subject the grantor was equally open, having taken one of their husbands with him at the time the deeds were prepared, or at the time they were directed to be prepared, and one of his daughters, having admitted her knowledge of the nature of the conveyance to her sister, as was shown by the testimony of the persons to whom she made the statement. The facts and circumstances surrounding the transaction exclude any other view, than that the matter was fully understood by the grantor and the two grantees of the life estate, and-point unerringly to the conclusion that the statement which the cashier doesn’t recollect, made by the grantor, was in substance, that the deeds handed over to him should be delivered to the parties whose names were inscribed upon the package as owners thereof. In view of the fact that these owners did apply for them and did get them, we think there was a technical delivery to them which under settled principles of law related back to the time the deeds were left with the cashier, and, therefore, involved a conveyance as if the whole matter had been done in the life time of the grantor. On this point it has been *95conclusively said by Judge Black speaking for this court: “A deed delivered by the grantor to a third person to be delivered to the grantee, and by such third person delivered to the grantee, will constitute a good delivery, though the grantor is dead at the date of the last delivery; for the delivery takes effect by relation as of the date when first made to the third person. In such cases it .should appear that the grantor parted with all dominion and control over the instrument, intending it to take effect and pass the title as a present transfer. This intention may be manifested by acts, or by words, or by both words and acts.” [Sneathen v. Sneathen, 104 Mo. l. c. 209; 2 Black. Comm., 307; 4 Kent, sec. 67, pp. 454-456.]

The learned counsel for appellants- cite McNear v. Williamson, supra. That case is in perfect accord with the doctrine here announced.. Besides, it was radically different as to the facts in judgment; for there the land was not delivered, while in this case the possession was turned over to the grantee immediately after the making of the deeds. Said the court in that ease: “It is not claimed that there was any delivery of the premises to the plaintiff on the execution of the deed or that any was demanded then or immediately thereafter. The conduct of the parties in that respect also was inconsistent with the idea that there had been a real sale.” [166 Mo. l. c. 369.]

The learned counsel for appellants also insist that there was not sufficient proof of acceptance of the deeds by the life tenant. We cannot agree with that view, for reasons heretofore stated. Besides, when the two daughters demanded their deeds the act of acceptance was complete unless that demand was made in ignorance of the quality of the estate conveyed in the deeds. Neither of these daughters submitted themselves to an examination on this point, although it was a matter peculiarly within their knowledge. The principle is plain that when a party in a civil cause *96has full power to give testimony exonerating himself from a rational inference of inequitable action arising out of his own conduct, and refuses to do so, then the conclusion will be drawn that the adverse deduction from the facts was true and could not have been disproved. So in this case if the two plaintiff daughters could have truthfully stated that they were unaware of the estate granted them and that they voluntarily returned the deeds when they discovered the exact nature of the estate conveyed, then their rights as heirs at law would have been unaffected as to the property described in the deeds. This was not done, and our conclusion is that they took the deeds with substantial knowledge of their contents and intended at the time to accept them. [16 Cyc. 1064, par. G; Werner v. Litzsinger, 45 Mo. App. l. c. 108.]

The judgment of the trial court is correct and is affirmed.

Graves, Brown and Faris, JJ., concur; Lamm, C. J., and Woodson and Walker, JJ., dissent.