Harvey v. Long

168 S.W. 708, 260 Mo. 374, 1914 Mo. LEXIS 122

• Court: Supreme Court of Missouri
• Decided: July 2, 1914
• Status: Published

Opinions

BROWN, C.

— Suit begun in Saline County Circuit Court August 12, 1908, to determine the title to a farm of one hundred seventy-odd acres of land in that county. The plaintiff is the son and sole heir of Hubert M. Harvey, who died at his residence in Chicago, Illinois, February 26,1895, intestate. He was about twenty-two years old when this suit was instituted. Both parties claim under the elder Harvey; the plaintiff as heir and the defendant as grantee in a deed from Mary B. Harvey, the widow of the deceased and mother of the plaintiff. She claimed title by a deed from her husband dated August 12,1893. The delivery of this deed is the principal issue in the case. The petition was a formal one framed upon section 650, Revised Statutes 1899.

The answer is very long. In addition to the general denial, it pleads, in substance: (1) That the defendant is in an innocent purchaser for value from Mrs. Harvey, having paid $10,875 for the land, and there being no reason to suspect any weakness in her title as shown of record, and believing it to be good. (2) That out of the purchase money he paid liens resulting from money borrowed by Mr. Harvey in his lifetime and secured by deeds of trust executed by himself and wife, as well as like incumbrances placed by Mrs. Harvey after his death. (3) That after Mr. Harvey’s death and in 1896 Mrs. Harvey had brought suit in the circuit court for Saline county against the plaintiff and John'L. Bolen, the administrator of the estate of Hubert M. Harvey, deceased, and obtained judgment vesting in her the legal title to the land. (4) That if the deed from Mr.-Harvey and his wife had not been delivered, it had fallen into the hands of Mrs. Harvey by the negligence of the grantor so that his heir is estopped from denying its complete execution. (5) That the deed from Harvey to his wife was made in pursuance of a contract then fully executed on her part whereby she had conveyed to him, or to another at his direction, her own farm of one hundred sixty acres, in consideration of his promise to convey to her the land in question. It asked equitable relief upon the facts so stated.

The reply, with considerable "detail, puts in issue the matter specially pleaded in the answer.

The question of the delivery of the deed grows out of the following facts which are not disputed. About eleven o’clock on the morning of Mr. Harvey’s death Mr. John L. Bolen, who had been a neighbor of the family in Missouri, and was the nearest business friend and adviser of Mrs. Harvey after the death of her husband, received a telephone message from the physician that Mr. Harvey had just died and asking him to come to the house. He went out there, where he met Mrs. Harvey and the doctor, and one or two neighbors. He talked with her about the Missouri land, and she told him about this deed. He said she should have it recorded. Pie went down to Mr. Harvey’s office, forced open his desk, not having a key, and got out all his private papers including the deed in question, and took them to Mrs. Harvey’s house; and at her instance sent the deed to Marshall, Missouri, for record.

The circumstances affecting the making of this deed as disclosed in evidence are as follows: Mr. Hubert M. Harvey was a lawyer who resided in Marshall, Saline county, Missouri. He owned two farms in that county, one of them the land involved in this suit, and the other 160 acres lying near it. In April, 1890, he determined to remove to Chicago. His wife did not want to go. She consented, however, but before going #she wanted him to deed her some land, and on April 19 he conveyed to her the 160-acre tract through one Burruss as a conduit of the title. He went to Chicago during the same month and she followed him in September of that year. Law practice did not come to him with alacrity in his new home. He undertook to speculate in real estate in north Chicago and ran behind in it. He lost some property by foreclosure and in the summer of 1892 desired very much to raise money. At that time he thought he saw an opportunity to sell Mrs. Harvey’s land and promised that If she would sell he would deed her the land in controversy. It was a slow sale and in July, 1892, he borrowed $7000 from J. P. Huston, he and his wife giving their note therefor secured by mortgage on both tracts of land. The note ran five years at seven per cent, interest. During that year he succeeded in negotiating a sale of Mrs. Harvey’s quarter section to one Blackburn, conveying to him on January 5, 1893, by warranty deed for $9600. Out qf this, after paying the Huston loan and interest and expenses he had a little, more than $2000. Of this $500 was given to Mrs. Harvey. He invested $1000 for her in stock which afterward proved to he worthless. The remainder was expended in repairing a house they had purchased on the south side, taking the title in Mrs. Plarvey’s name, and which she desired to be in condition to rent during the Columbian exposition, which she did, receiving $1500. as rental. This house was purchased after the return of Mrs. IParvey from a visit to Missouri in 1892, $2500 being paid on it. Where this money came from — whether from the sale of a house they had previously purchased in north Chicago or from the Huston loan or other funds — does not appear. It does appear, however, that this cleaning up did- not-put an end to Mr. Harvey’s financial necessities, the title to the remaining tract, the one now in controversy, being strewn with evidences of his need for money. She joined with him in a deed of trust given December 12, 1893, to secure the payment of their note for $2000 borrowed from George A'. Murrell, and also in a like deed dated April 12, 1894, to secure payment of his note for $382 borrowed from D. N. Burruss. These were unpaid at the time of his death. After his death Mrs. Harvey seems to have taken care of them. The note to Burruss was paid June 1, 1895, and on April 15, 1896, she made a deed of trust of this land to secure $2500 borrowed from Thomas R. Lawless and Mary J. Woodson and the Murrell note was then paid. This was satisfied in its turn from money realized from a loan of $3250 from John B. Henderson secured by deed of trust on the same land. This last mentioned deed of trust was also satisfied on May 15, 1903, out of the proceeds of a loan of $5000 from the Prudential Insurance Company of New Jersey, and this and a second mortgage for $1568.93 to the Farmers Savings Bank of Marshall, Missouri, made November 16, 1905, were satisfied by the defendant as a part of the purchase price of $10,875 paid Mrs. Harvey for the land.

Mrs. Harvey seems, after her husband's death, to have taken up the education of her boy. She kept a boarding house in Columbia for five years while he attended the Missouri State University, graduating from the law department just before the bringing of this suit.

In addition to the undisputed evidence that the deed in question was prepared by Mr. Harvey in pursuance of an agreement with his wife that he would convey the land' in controversy to .her, two witnesses testified directly that Mr. Harvey had stated to them, in substance, that he had conveyed the land to his wife. Mrs. Harvey’s statement of the facts relating to the delivery of the deed is as follows:

“Q. Do yon remember when it was made? A. Yes, sir.

“Q. Did your husband deliver it to you at that time? A. No, sir.

“Q. .Did he offer to give it to you? A. He brought it out to me and read it to me. I was getting dinner at the time. He read it aloud to me and I told him I didn’t like it.

“Q. Did you accept it when he offered to give it to you? A. No, sir, I didn’t want it that way; it wasn’t just the way I thought it ought to be.

“Q. Why didn’t you accept it, Mrs. Harvey? A.. Well, I don’t know anything about deeds, but before we moved to Chicago,' understand Mr. Harvey went there in April, 1890, but I didn’t want to go and didn’t go until September, and before I went I wanted, him to deed me some land. I didn’t want to go to Chicago, so he deeded me that 160 acres sold to Mr. Blackburn. He deeded that land to my brother, and my brother deeded it to me; then when he deeded this land I wanted him to deed it to somebody , so they could then deed it to me, and so I wouldn’t take this deed that way.

‘Q. Because it was made directly to you instead of to a third party? A. Yes, sir.”

Suit in Equity: Findings of Fact: Appeal. I. The appellant has assigned for error that the court refused, in disregard of the request of plaintiff made after the close of the evidence at the trial, and before judgment, to state in writing his conclusions of facts found separately from the conclusions of law.

The petition asked no relief excepting the purely equitable one that his title be established and quieted as against the defendant. The special defenses of the answer look solely to the distinctively equitable remedies of subrogation, specific performance and equitable estoppel. . Applying the more definite and conclusive test of our code of civil procedure by which these pleadings must be judged, they frame no issue of fact to be tried by a jury (R. S. 1909, sec. 1968), but must be tried by the court unless it .elect to take the opinion of a jury upon some specific question of fact. [Id., sec. 1969.]

It is now firmly settled by the adjudications of this court that in such cases, it being our duty to examine the evidence and draw our own conclusions of facts as well as of law, a failure of the trial court to make special findings is not prejudicial error. [Blount v. Spratt, 113 Mo. 48; Miller v. McCaleb, 208 Mo. 562, 575; Walther v. Null, 233 Mo. 104, 110, 134; Kuczma v. Droszkowski, 243 Mo. 57, 61.]

Deed from Husband: to Wife: Retained in His Possession: Delivery. II. The real question in the case arises upon the delivery of the deed from Mr. Harvey to his wife. In coming to the consideration of this we are met at the first step by the relationship of the parties. They are husband and wife; members of a single family of which he is, in contemplation of law, the director and head. They are the natural agents, each of the. other, in the performance of the duties of their respective positions. It would exhibit the same superfluity of caution in the wife of a business man to keep a strong box of her own for the' safe keeping of her important papers, as for a man to keep in office or kitchen a separate repository in which he might personally control the food provided for the idiosyncrasies of his own palate. Care and watchfulness of her property interests come as naturally within his province, as do care and watchfulness of the menage within hers. Paraphrasing the oath of Tlie Three Musketeers, it is, in their relation, both for one, one for both. This relation ought to be and is considered in determining whether a deed remaining in the physical custody of the grantor husband has been delivered to the wife. [Rumsey v. Otis, 133 Mo, 85, 96.]

Our statute (Sec. 2818, R. S. 1909) provides: “Every instrument in writing, conveying or affecting real estate, which shall be acknowledged or proved, and certified as hereinbefore prescribed, may, together with the certificates of acknowledgment or proof, and relinquishment, be read in evidence without further proof.”

It is but giving effect to the ordinary meaning of these words to say that they make the certificate of acknowledgment required by statute prima-facie evidence of every element necessary to constitute the due execution of the deed including both its signing and delivery to.the grantee. This is surely reasonable, for it is the official record of the solemn and contemporaneous admission of the grantor to that effect, than which there can be no' higher evidence, not even that of a disinterested witness who saw the acts. This has been frequently asserted by this court. [Parkinson v. Caplinger, 65 Mo. 290, 294; Burk v. Pence, 206 Mo. 315, 339; Barbee v. Bank, 240 Mo. 297, 306.] In addition to this presumption we have the testimony of those to whom Mr. Harvey said, in substance, thát he had conveyed the land to his wife, and the fact proven and admitted in argument, that he had promised to do so for a consideration fully executed on her part.

It has frequently been held that to constitute a delivery it is not essential that the deed be actually transferred. In Bunnell v. Bunnell, 64 S. W. 420, 424, the Court of Appeals said: “If the grantor, when executing it, intends it as a delivery, and this is known to and understood by the grantee, and they treat the estate as having actually passed thei'eby, it will have that effect though the instrument be left in the possession of the bargainor. [Washb. Real Prop. 261; Cecil v. Beaver, 28 Iowa, 241; Tobin v. Bass, 85 Mo. 654; Gould v. Day, 94 U. S. 405.] Delivery may be shown by acts without words, or words without acts, or by both combined. [Hughes v. Easten, 4 J. J. Marsh. 573; Shoptaw v. Ridgway (Ky.), 60 S. W. 723; Martin v. Bates (Ky.), 50 S. W. 38; Ward v. Small, 90 Ky. 198. This court has also contributed several well considered declarations to the same effect. [Allen v. DeGroodt, 105 Mo. 442; Standiford v. Standiford, 97 Mo. 231, 239; Crewder v. Searcy, 103 Mo. 97, 118, citing Cannon v. Cannon, 26 N. J. Eq. 316; Burke v. Adams, 80 Mo. 504.] In the case last cited, the rule is clearly stated by Philips, C., as follows: “The intent to convey is evidenced by the act of making out and duly executing and acknowledging a deed. The delivery may be evidenced by any act of the grantor by which the control, or dominion, or use of the deed is made available to the grantee. It is not necessary it should be handed over actually to the grantee, or to any other person for him. It may be delivered under certain circumstances, though it remain in. the possession of the maker.’’’ In the case last above cited the learned Commissioner quotes from the language of Judge Spencer in Jackson v. Phipps, 12 Johns. 421, as follows: “This delivery must be either actual, by doing something and saying nothing, or else verbal, by saying something and doing nothing; or it may be both; but by one or both of these it must be made; for otherwise, though.it be never so well sealed and written, yet is the deed of no force.” In the same case he quotes from Burt v. Cassety, 12 Ala. 734: “It is of no importance whatever that the vendee was not present when the deed was made. She is presumed to assent to it as the deed was for her benefit. ’ ’ The same idea has been approved by this court (Crowder v. Searcy, supra) in a quotation from Bryan v. Wash, 2 Gilm. 568, in its application to conveyances by those standing in a confidential relation to the grantee, as follows: “It must be remembered, that the law presumes much more in favor of the delivery of deeds in case of voluntary settlements, especially when made to infants, than it does in ordinary cases of bargain .and sale. The same degree of formality is never required, on account of the great degree of confidence which the parties are presumed to have in each other, and the inability of the grantee, frequently, to take care of his own interests. The presumption of law is in favor of the delivery, and the burden of proof is on the grantor to show clearly that, there was no delivery. It was so adjudged by Chancellor Kent, in the case of Souverbye v. Arden, 1 Johns. Ch. 255, where he says: ‘A voluntary settlement, fairly made, is always binding in equity upon the grantor, unless there be clear and decisive proof that he never parted, or intended to part, with the possession of the deed, and even if he retains it, the weight of authority is decidedly in favor of its validity.’ ” And if the deed is delivered withoxft the transfer of possession to the grantee and without his acceptance, expressed or implied, such acceptance relates to the making of the deed which becomes valid ab initio, and as said by this court in Rumsey v. Otis, supra (p. 95): “The delivery itself is only intended to evidence the purpose of the grantor to give effect to the instrument, and the law presumes much more in favor of a delivery in cases of voluntary settlements in favor of a wife, child, or near relative than it does in ordinary cases of bargain and sale between strangers.”

“The delivery of a deed, so far as the grantor is-concerned, is a matter of intention, and where the intention clearly appears, the act in pursuance thereof will be construed to constitute a delivery.” [Coulson v. Coulson, 180 Mo. 709, 715.] It is hardly to be expected that these acts will be the same in any two cases. That Mr. Harvey intended to convey the land in question to his wife so far as the terms of this deed would accomplish that object cannot be doubted. That Mrs. Harvey accepted and acted upon that theory and appropriated to herself all the benefits that could result, from it, even to the extent of appropriating* to her own use the money paid her for the land by the defendant, is equally true. There can be no more solemn, or, from a moral standpoint, more irrevocable admission that she had accepted the deed and thereby became the owner of the land than this. She says also that the money she received has been spent, so that she cannot return it to the purchaser from whom she has taken it. There is much authority as well as reason for the doctrine that these acts of themselves constitute an acceptance of the deed which relates back to the time of its signing and acknowledgment notwithstanding the intervening death of her husband. The appellant disr putes this. He says that unless her title under the deed was complete before the occurrence of that event, the doctrine of relation affords no bridge over which the acts occurring on either side may pass and mingle with each other. Accepting this statement without expressing any opinion upon the question so presented, we will consider whether or not the evidence establishes the delivery of the deed in the lifetime of the grantor. We have already seen that the acknowledgment raises a legal though rebuttable presumption of its complete execution by signing and delivery, including its acceptance by the grantee, so that it may be introduced in evidence as complete without further proof of any of those facts. Added to this are the admissions of the grantor against his own interest, that he had parted with the title to the land hy conveyance to his wife. Then we have the sworn statement of Mrs. Harvey that she knew of its execution; that he both showed it and read it to her, offering it to her at the same time. Then comes the fact which does not depend upon disputable evidence and which furnishes the ground and substance of this case, that Mrs. Harvey assumed that the deed and the land were hers, by taking possession of it as against this plaintiff heir and holding it and selling it. We have seen that as between husband and wife the rule is peculiarly applicable that the delivery of a deed may lie in the intention of the husband while the instrument still remains in his possession. Although this rule has been generally applied in cases of voluntary settlements, the reasons supporting it becomes still stronger where the deed rests upon a valuable consideration lending its weight to the presumption. For this reason it is unnecessary that we should enter upon the intricate question of what became of the money realized from the sale.of Mrs. Harvey’s quarter section.

Against this evidence, aided by the presumption which the law interposes to prevent injustice being done by the concealment of the actual facts, the plaintiff interposes the theory that the preparation of this deed was what might be called in the American dialect a “bluff” on the part of Mr. Harvey;- the implication is that he did not expect it to be accepted in the form in which it was prepared, nor was he willing to induce her acceptance by conveying the land through a trustee constituted for that purpose; that Mrs. Harvey had declined, for the anticipated reason, to accept it until she discovered that by the death of her husband she could use it to deprive her son of the land. It is true her attorneys suggest that she adopted this course so that she could handle the title for the benefit of the child without having to do so through the expensive process of administration and guardianship, but this explanation must be without merit, for there is no suggestion that the purchase money was appropriated to the use of the plaintiff, nor is there any offer to return any part of it to- the defendant. It is also suggested that there is some significance in the fact that Mrs. Iiarvey joined with her husband in borrowing $2000, for which they gave their joint .note secured by deed of trust upon the land in controversy, and that she also joined with him in the execution of a deed of trust on the same land to secure another note to her brother, Mr. Burruss, for $382. Both these transactions were after the date of the deed in question and the notes remained unpaid at the time of his death. We see no significance in this other than is suggested by the testimony of Mr. Bolen, to the effect that Mr. Harvey was embarrassed in business and needed money.- Under these circumstances it would be natural for a good wife to do what she could to help him. We can also understand the hesitation of both in their embarrassed circumstances, to place of record a deed conveying to the wife so considerable an item of property available for the payment of his debts.

The security and commercial availability of land titles, and the protection of innocent purchasers of such property against fraud and imposition, require that their visible muniments bear the facts relating to their condition, as far as possible, upon their face. For this reason conveyances of such property are required by law to be written, and to carry with them written evidence of their due execution. It would defeat the object of these requirements could the evidence so constructed be overthrown by anything less cogent and convincing than itself. In Elliott v. Sheppard, 179 Mo. 382, 392, we said: “This court, in a number of cases, has spoken in no uncertain terms as to the nature and character of the testimony which will warrant the overthrow of the force and effect of a deed, duly aclcnowledged, all of which appears regular upon its face. The expressions of this court as well as the other appellate courts are uniform — that to warrant the finding that such deed and eértificate of acknowledgment is untrue, the evidence must be clear and satisfactory. [Barrett v. Davis, 104 Mo. 549; Webb v. Webb, 87 Mo. 540; Riecke v. Westenhoff, 10 Mo. App. 358; Morrison v. McKee, 11 Mo. App. 594; Brocking v. Straat, 17 Mo. App. 296.]” To fill this requirement we have the statement of Mrs. Harvey that she refused to accept this deed. On the other hand we have the fact that, pretending to accept it, she sold the land which it represented, and appropriated the money, which she is unable to return. Her earlier act found its incentive in obtaining for herself what should have gone to her son. Her present testimony is to the end that the purchaser whom, if it be true, she deceived, be made to pay her son that which she should in conscience be made to pay him herself. Is there any question which of these things we are required by the law as well as by good morals to believe? As we have already said her present statement is bare of support in the record. Even her reason for rejecting the deed when offered to her stands upon slippery ground. Being a legal opinion, we would expect her to have asked a lawyer whether or not it was well founded. For this reason we cannot keep out the mental suggestion that the thought came to her too late to be available for that purpose. This transaction was had only a few years after the passage of the Married Woman’s Act of 1889, which struck from our legal system the ancient fiction of the common law that husband and wife were one, and could not therefore be separated into the two parties necessary to a contract, and places them on an equality in that respect and gives to the wife all the rights with reference to the separate ownership of lands that she had theretofore enjoyed with reference to the ownership of personal property.. This court has uniformly held that under its provisions she can contract freely with her husband with respect to all kinds of property, including lands, and that they could enforce such contracts against each other at law as well as in equity. [Rice, Stix & Co. v. Sally, 176 Mo. 107, 130; O’Day v. Meadows, 194 Mo. 588; Bower v. Daniel, 198 Mo. 289, 320; Bank v. Hageluken, 165 Mo. 443; Kirkpatrick v. Pease, 202 Mo. 471, 490.] While before 1889 the contract of a married woman for the sale of land could not be enforced (Clay v. Mayer, 183 Mo. 150), their contracts since that time have stood upon the same footing as those of other persons.

The single exception in this line of adjudications is Christ v. Kuehne, 172 Mo. 118, in which, while the question did not arise, as it made no difference whether the wife took a legal or equitable estate by the conveyance involved, the court, for convenience, adopted the view of the appellant that the estate was an equitable one. The effect of the Married Woman’s Act as it then existed was not noticed.

. Under all the facts and circumstances in this case we hold that the testimony of Mrs. Harvey was not sufficient to overcome the prima-facie case arising from the duly acknowledged deed together with the other circumstances in evidence. The judgment -of the Saline Circuit Court must accordingly be affirmed.

Blair, G., concurs.

PER CURIAM.

— This case, having been concurred in in Division by Blair, C., and sent into Banc on dissent of two of the brethren, was reheard, and the opinion of Brown, C., was adopted as that of the court.

Lamm, G. J., and Brown, J., concur. Walker and Faris, JJ., concur in the result. Woodson and Bond, JJ., dissent. Graves, J., dissents in an opinion filed.