235 Mo. 544 | Mo. | 1911
— This is a suit for partition of land in Livingston county. The parties are the children and widow of George Glover, who was the owner of the land and who died intestate August 2, 1905. The petition avers that on the death of George Glover the land deeended to his children in fee, subject to the widow’s homestead and dower. The only controversy in the case arises out of an instrument in writing which the widow claims to be a deed executed by George Glover, October 12, 1903, whereby, she contends, he reserved to himself a life estate and conveyed the remainder in fee to her. The instrument on its face makes no mention of a life estate or of a remainder, but purports to be a conveyance in fee by the grantor to his wife. The language of the deed is: “That the said party of the first part [George Glover] in consideration of the sum of one hundred dollars and love and affection to him paid by the said party of the second part [his wife Louisa Glover], the receipt of which is hereby acknowledged, do by these presents grant, bargain and sell, convey and confirm unto the said party of the second part, her heirs and assigns, the following described lots, tracts or parcels of land lying being and situate in the county of Livingston and State of Missouri, to-wit:” Then follows a description of the land which we will omit; after that description comes this sentence: “This deed not to go into effect until after the death of the said George Glover.” The widow insists that those words constitute a reservation of a life estate in the grantor and that the preceding words of grant, bargain and sale convey to her an estate in fee in remainder. In her answer she says that such was the intention of her husband when he executed the deed,
The court found the issues in favor of the plaintiffs; found that the instrument in dispute had never been delivered, that it was testamentary in its character, but ineffectual as a will because it was not executed as a will, that the widow acquired no right or title under it, that it was a cloud on the plaintiffs’ title and should be cancelled as such; that the widow was entitled to a homestead and dower in the land described in the petition, that the land was not susceptible of partition in kind according to the rights of the parties in interest. Commissioners were appointed to set apart the homestead and dower of the widow, and thé rest of the land was decreed to be sold for partition and division among the children of George Glover deceased. From that judgment the widow appealed.
I. The only express testimony on the question of delivery was that of appellant herself who testified that her husband handed the deed to her and she received it as such. When this witness offered to testify on this point plaintiffs objected on the ground that she was incompetent as a witness to prove the delivery of the deed, under the provisions of section 4652, Revised Statutes 1899, now section 6354, Revised Statutes 1909, but the court overruled the objection. The objection should have ‘been sustained. The alleged deed was “the contract. ... in issue and on trial” and-the other party to it being dead, the living party was incompetent to prove its execution. Proof of delivery of a deed is proof of an essential point in its execution.
Other testimony on the question of delivery on the part of plaintiffs was to the following effect: George Glover had a tin box, on which his name was painted, in which he kept his valuable papers and which he placed for safe keeping in the vaults of the bank where he kept his bank account. After his death appellant went to the bank and requested that the box be delivered to her, but the bank people refused to give it to her, saying that as George Glover was dead the box should be delivered only to the administrator of his estate. Thereafter appellant qualified as administratrix of the estate, and again made application to the bank for the box and it was delivered to her; she opened it in the presence of witnesses, took therefrom the deed in question and caused it to be placed on record. On the part of appellant the testimony on this point was to the
The most that can be made out of the testimony for appellant on this point is that her husband placed the deed where she had access to it, but where he also had access to it.
An instrument intended to be a deed is not a deed until the grantor delivers it to the grantee; the delivery may be made through the agency of a third person, as where the grantor delivers it to a third person to be delivered to the grantee. It is essential to a valid delivery that the grantor part with the possession of the instrument without reservation and with the intention that it take effect at that time and operate as a transfer of the' title. [Standiford v. Standiford, 97 Mo. 231.] If this instrument had been actually delivered to Mrs. Glover by her husband and she had put it in the tin box with his papers and deposited it in the bank for safe keeping, where he had access to it and might have taken possession of it, that fact would not have had the effect
Construing' the circumstantial evidence in this case and applying it to the instrument in question which says on its face that it is not to take effect until after the death of the grantor, we are satisfied that the learned trial judge was justified in finding that there had been no delivery of the paper in question as a deed.
II. But even if the instrument had been delivered it was invalid as a deed of conveyance, because, by its own terms, it was not to take effect until after the death of the grantor, it was testamentary in its character and, not being executed according to the requirements of law for the execution of a will, it is invalid as such.
Appellant’s learned counsel have presented a very able brief and argument in support of their contention that an instrument limited, as this is, to take effect only after the death of the grantor, is valid as a deed of conveyance, and they have cited cases from other states which so hold, but that is not the law of this State.
The trial court had the correct understanding of this case. The judgment is affirmed.