Opinion
October 31, 1940.
1. APPEAL AND ERROR: Abstract of Record. Where appellants' abstract of the record failed clearly to set out the pleadings on which the case was tried, but respondent's additional abstract, though it does not show that plaintiffs filed an amended petition, authorizes the inference that plaintiffs amended their original petition by interlineation, and under Rule 9 of the Supreme Court the clerk must only set out the last amended pleadings and will set out no abandoned pleadings, the Supreme Court is authorized to presume that appellants' abstract sets out the petition as amended; and respondent's motion to dismiss appeal is overruled.
2. APPEAL AND ERROR: Conclusion of Fact. On appeal from an action to set aside a deed the Supreme Court will reach its own conclusions as to the facts giving due consideration to the findings of the chancellor.
3. DEEDS: Delivery. The essentials of a delivery of a deed are the parting of the possession and the control of the same by the grantor and putting possession and control in the hands of the grantee with the intent to pass title from grantor to the grantee.
Where a father and his wife conveyed land to his son and his wife, reserving a life estate in grantors and at the same time the son and his wife executed a deed conveying the land back to the father and his wife, the stepmother, who, after the father's death, remarried and the latter deed was recorded, the finding of the chancellor that the deed to the father and the stepmother was delivered with intent to vest title, was supported by the evidence, though the grantors erroneously believed that the stepmother could revest title in the grantors by withholding the deed from record.
Appeal from Grundy Circuit Court. — Hon. V.C. Rose, Judge.
AFFIRMED.
Chas. A. Miller for appellants.
(1) There was no delivery of the deed because dominion of grantors over it, did not intentionally pass. The deed was left in a place assessible to defendant, but appellants did not intend that it be delivered. There was no intent at the time on the part of the grantors (appellants) to divest themselves of title. McNair v. Williamson, 166 Mo. 367; Terry v. Glover, 235 Mo. 544; Tyler v. Hall, 106 Mo. 313; Coulson v. Coulson, 180 Mo. 709. (2) There was no delivery of deed in issue because evidence shows it was to become effective upon contingencies, of Amanda Hein dying first, it then to be worked out by appellants and Daniel Hein and if Daniel Hein died first, the deed was to be destroyed. Bunn v. Stuart, 183 Mo. 375; Terry v. Glover, 235 Mo. 544; Coles v. Belford, 232 S.W. 728; Jarboe v. Hey, 122 Mo. 341. (3) The recording of deed is not conclusive as to delivery; and any presumption is overcome by the acts of defendant in waiting to record and in making statements that she had a life dower; and in saying that Walter Hein got the land after her death; and in entering into contract as to taxes in 1932. The deed was not voluntarily put of record by the plaintiffs herein, but in direct violation of their intention and direction. Bunn v. Stuart, 183 Mo. 375.
Ruth C. Woodruff and George E. Woodruff for respondent.
(1) Respondent has the right to insist that the judgment is for the right party on the record. A demurrer ore tenus was interposed. Respondent's additional abstract shows that the petition and answer on which this case was tried are not before the court. The original petition and answer are not, in view of the amendment, a part of the record proper. Whether or not the petition on which the case was tried stated a cause of action or whether or not the answer, undenied by reply, stated a defense thereto, cannot be determined. The appeal should be dismissed where pleadings on which the case was tried are not abstracted. Williams v. Campbell, 123 S.W.2d 87; Eads v. Volmer, 38 Mo. 357; Rozier v. Nations, 178 S.W. 740; Sedgwick Co. v. Newton County, 144 Mo. 301. (2) Abandoned assignments of error will not be considered. Dickson v. Maddox, 48 S.W.2d 873, 330 Mo. 51. (3) Where the evidence shows that the deed was a deed of gift, no valuable consideration therefor is necessary. Clark v. Skinner, 70 S.W.2d 1094, 334 Mo. 1190. (4) Where the deed is given into the possession of the grantee with the intention that the deed have an effect it is effective in passing title according to its terms even though the parties may be mistaken as to the effect the deed has. Mason v. Mason, 231 S.W. 971; Jones v. Jefferson, 66 S.W.2d 555, 334 Mo. 606; Keener v. Williams, 271 S.W. 489, 307 Mo. 682; Miles v. Robertson, 258 Mo. 717, 167 S.W. 1000; Aude v. Aude, 28 S.W.2d 665; Clark v. Skinner, 70 S.W.2d 1094, 334 Mo. 1190; Hale v. Weinstein, 102 S.W.2d 650; Lanphere v. Affeld, 99 S.W.2d 36. (5) Where the evidence is conflicting, the court on appeal will defer to the findings of the chancellor. Rhoads v. Rhoads, 119 S.W.2d 247; Hale v. Weinstein, 102 S.W.2d 650; Lanphere v. Affeld, 99 S.W.2d 36. (6) The declarations, admissions, or course of conduct of the grantee indicating his understanding of the legal effect of a deed cannot change or affect its validity or legal effect. Gorton v. Rice, 153 Mo. 676, 55 S.W. 241; Voigt v. Blanto Co., 46 S.W.2d 927; Wishart v. Gerhart, 105 Mo. App. 112, 78 S.W. 1094. (7) The cancellation of a deed is an exertion of the most extraordinary power of equity and will not be exercised except in a clear case. The burden is on the one seeking cancellation to establish his right thereto by clear, cogent and convincing testimony. Lastofka v. Lastofka, 99 S.W.2d 54, 339 Mo. 770; Aude v. Aude, 28 S.W. 668. (8) A conveyance to defeat a creditor is good between the parties. Only a creditor may question its validity. Stierlin v. Teschemacher, 64 S.W.2d 647, 333 Mo. 1208; Price v. Morrison, 236 S.W. 297, 291 Mo. 249; Raney v. Ins. Co., 246 S.W. 57, 213 Mo. App. 1.
Appeal from the Circuit Court of Grundy County from a decree in favor of defendant in a suit to set aside a deed.
In this court, respondent filed a motion to dismiss the appeal because of the failure of the abstract of the record to comply with our rules in certain particulars. After that appellants filed a motion to supply portions of the record and respondent filed suggestions in opposition. Respondent contends that the abstract, as corrected, still contains fatal defects as follows: (1) There is no record entry that a bill of exceptions was filed nor an appeal taken; (2) The purported judge's certificate does not show that a bill of exceptions was approved and ordered filed; (3) The purported bill of exceptions does not show the filing of the motion for a new trial, the ruling thereon, or exceptions to such ruling.
The certificate of the judge shows only that the bill of exceptions was presented and does not show that it was approved and ordered filed. However, the certificate of the clerk shows that the bill was approved by the court in term time, ordered filed, and actually filed and made a part of the record. The bill of exceptions does not make any mention of a motion for new trial. The abstract sets out the motion followed by the words: "filed April 24, 1939, Sam Knight, Cir. Clerk and Ex-officio Recorder." Then follows a record entry showing that the motion for new trial was taken up by the court and overruled, and an appeal allowed.
Appellants' abstract sets out a petition filed January 21, 1939, and an answer filed February 20, 1939. Respondent has filed an additional abstract pointing to the book and page of the court record showing an entry made on March 31, 1939, as follows: "By leave of court plaintiffs amend petition . . . By leave of court defendant files answer to plaintiffs' petition as amended." Respondent's additional abstract does not complete the record entry nor supply the answer filed.
Appellants' abstract falls far short of being in the usual, approved form, and a strict construction of our rules would justify us in dismissing the appeal. The most serious defect is the failure to clearly show that the abstract sets out the pleadings on which the case was tried. However, as respondent's additional abstract does not show that plaintiffs filed an amended petition, but authorizes the inference that they amended their original petition by interlineation; and, as our rule Number 9 provides that the clerk "will only insert the last amended pleading and will set out no abandoned pleading," we are authorized to assume that appellants' abstract sets out the petition as amended. Without establishing a precedent for the future, we will overrule respondent's motion to dismiss the appeal.
Appellants are husband and wife; appellant, Walter J. Hein, being the son of Daniel Hein, deceased. Respondent, Amanda Hein Payne, is the stepmother of Walter J. Hein and the widow of Daniel Hein, she having remarried after the death of Daniel Hein. On December 26, 1931, Daniel Hein and wife executed and delivered to appellants a deed conveying to them the land now in controversy, but reserving a life estate in the grantors. At the same time the appellants signed and acknowledged a deed purporting to convey the same land back to Daniel Hein and his wife, the respondent. Appellants recorded their deed on the day it was executed. The deed to Daniel Hein and wife was recorded by respondent on October 30, 1936. Thus far there is no dispute as to the facts.
The sole question for decision is as to whether the latter deed, from appellants to Daniel Hein and wife, was delivered with the intention of passing the title.
Plaintiffs (appellants) offered in evidence a marriage contract, entered into by Daniel Hein and respondent at the time of their marriage in 1923, in which it was provided that respondent should have a life estate in the land. Plaintiffs testified that the deed in question was executed at the home of Daniel Hein and left in the possession of respondent; that respondent then agreed that, if she survived her husband, Daniel Hein, she would destroy the deed without recording it; but, if Daniel Hein survived her, he and the appellants would have to decide what to do with the deed. Appellants also offered evidence to the effect that, after the deed was executed, respondent stated on a few occasions that she owned only a life estate in the land.
Defendant (respondent) denied the statements attributed to her and testified that the deed was delivered to her without any restriction. She said that prior to the execution of the deed her husband, Daniel Hein, had been sued on a note for a large amount; that he told defendant he was afraid the land would be taken from him and he wanted respondent to have it; that defendant kept the deed in her lock box until the suit on the note was disposed of and then recorded it. On behalf of defendant, the notary who prepared the deeds and took the acknowledgments testified as follows:
"Q. All right not what was said? A. That they would draw two deeds, one from Daniel Hein, husband and wife to Walter Hein and Vina Hein, husband and wife, reserving a life estate; we would draw the second deed from Walter Hein and Vina Hein to Daniel Hein and Amanda Hein, husband and wife, without any reservation; then Amanda Hein was — I was to deliver the second deed to Amanda Hein, which she was to hold so long as she desired, if she didn't desire to place it of record that this place at her death would go to Walter Hein and Vina Hein, if she so desired, and if she needed the money to live on then she could place this deed of record and do as she pleased.
"Q. Now what, if anything, was said by Daniel Hein, relative to his wife, Amanda Hein, having title to this property, absolutely? A. That was his intention if she so desired.
"Q. If she so desired? A. Yes, sir.
"Q. That was said in the presence of Walter Hein and Vina Hein? A. That's my recollection.
"Q. And what, if anything did they say about it A. There was no complaint raised that I heard of."
This case, being in equity, we reach our own conclusions as to the facts, giving due consideration to the findings of the chancellor. [Hale v. Weinstein, 102 S.W.2d 650, l.c. 652.]
The parties have cited to us many cases on what constitutes delivery of a deed. These cases differ as to the facts upon which they were ruled, but substantially agree upon the abstract rule of law. This rule may be stated in the language used in Clark v. Skinner, 334 Mo. 1190, l.c. 1199, 70 S.W.2d 1094, as follows: "The essentials of a delivery of a deed are, the parting of the possession and control of the same by the grantor and the putting of such possession and control in the hands of the grantees, or someone for them, with the intent to pass title from grantor to the grantees."
In the instant case, under any view of the evidence, the appellants parted with the possession and dominion of the deed. The only question is as to whether they intended to pass title to the land. Viewing appellants' testimony in the light most favorable to them, it might be said that the delivery was a conditional one, only to become final and effectual in the event the respondent should be survived by her husband. Under the testimony of the respondent, the delivery was complete; and this is so even if we disregard what her husband told her and which may have been inadmissible on proper objection. Also, under the testimony of the notary, the delivery was complete, because that testimony shows that the future title rested entirely with respondent. That is to say, this testimony indicates that appellants intended to pass the title, but erroneously believed that respondent could revest title in them, if she so desired, by merely withholding the deed from record.
The chancellor, seeing and hearing the witnesses, was in a better position to form a correct conclusion than we are by reading the record. However, the record indicates to us that the decree is for the right party and it is hereby affirmed. All concur.