Opinion
No. 39605.
April 30, 1946.
1. DEEDS: Recording Not Delivery. The recording of a deed does not of itself operate as a delivery of the deed.
2. DEEDS: Delivery: Acceptance after Recording. A deed may be accepted after recording and when such is done the conveyance is valid.
3. DEEDS: Conveyance by Grantee as Acceptance. A subsequent conveyance by the grantee was evidence that the deed was accepted.
4. FRAUDULENT CONVEYANCES: Deed for One Dollar Consideration Not Voluntary. A deed is not a voluntary one no matter how trivial the consideration. So a deed reciting a consideration of one dollar is not established as a voluntary deed and therefore presumptively fraudulent.
5. FRAUDULENT CONVEYANCES: Deed from Father to Son: Prima Facie Case of Fraudulent Transfer Not Established. A prima facie case of fraudulent transfer was not established merely by the introduction of a deed from father to son reciting "one dollar and other valuable considerations". And no other facts were proved which would give rise to a presumption of fraud.
6. QUIETING TITLE: Failure of Plaintiff's Proof: Judgment for Defendant Proper. Since plaintiff failed to make a prima facie case it was proper on the record to enter a decree adjudging title in defendant.
Appeal from Jackson Circuit Court. — Hon. John S. Cook, Judge.
AFFIRMED.
Harry W. Durall and Samuel Feller for appellant.
(1) The levy of the execution on December 27, 1943, constituted a lien on the property in question, which related back to the date of said judgment, and was notice to respondent that Mrs. Weigel, the execution claimant, claimed an interest therein in L.G. Wood, and whatever title respondent took from Nyle C. Wood thereafter was taken subject to such lien, said levy having been filed in the recorder's office prior to the deed from Wood to respondent. It was error for the court not to so hold. She was not an innocent purchaser without notice and the burden was on her to establish the validity of her deed. She stood mute. Young v. Schofield, 34 S.W. 497, 132 Mo. 650; White v. Spencer, 117 S.W. 20, 217 Mo. 242; Sec. 1343, R.S. 1939; Slattery v. Jones, 8 S.W. 554, 96 Mo. 216. (2) The attempted transfer of the property in question from L.G. Wood to Nyle C. Wood, his son, in consideration of One Dollar, without a revenue stamp attached, is a voluntary conveyance and is absolutely void as against Mrs. Weigel, appellant, a creditor of L.G. Wood. It was error on the part of the court not to so have held. Also, a conveyance made for the purpose of defeating an anticipated judgment in a case pending or about to be commenced is in fraud of creditors and void as to such plaintiff. Godchaux Sugars, Inc., v. Quinn, 95 S.W.2d 82; Oetting v. Green, 166 S.W.2d 548, 350 Mo. 457; George v. Surkamp, 76 S.W.2d 368; Clark v. Thias, 73 S.W. 616, 173 Mo. 628; Woodard v. Mastin, 106 Mo. 319, 17 S.W. 308; Seested v. Applegate, 26 S.W.2d 726. (3) The delivery of a deed to the grantee is necessary to transfer the title to real estate. In this case, L.G. Wood's delivery of the deed to the recorder, and receiving the same back from the recorder after being recorded, thereby exercising full control thereof, would not constitute a delivery. It was error on the part of the court to refuse to receive the tendered record from the recorder's office in evidence. Sec. 13167, R.S. 1939; Cravens v. Rossetter, 116 Mo. 338, 22 S.W. 736; Miller v. McCalib, 106 S.W. 655; Forster v. Clark, 171 S.W.2d 647, 351 Mo. 59; Blackstone v. Russell, 44 S.W.2d 22, 328 Mo. 1164; 26 C.J.S., p. 246; Weller v. Meadows, 272 S.W. 85.
Marion D. Waltner, T.V. Conrad and Clarence C. Chilcott for respondents.
(1) The plaintiff has mistaken her remedy and therefore cannot recover. Castorina v. Herrmann, 104 S.W.2d 297; Bullock v. Peoples Bank of Holcomb, 173 S.W.2d 753; Madden v. Fitzsimmons, 150 S.W.2d 761. (2) The evidence adduced by plaintiff was wholly insufficient to show the deed from L.G. Wood to Nyle C. Wood and Maud A. Wood was a voluntary conveyance and void as against plaintiff because: The presumption is that where land is conveyed by voluntary deed that it was for a valuable consideration. Holloway v. Vincent, 128 S.W. 1009; Yates v. Burt, 143 S.W. 73; Edwards v. Latimer, 82 S.W. 109; Brown v. Weare, 152 S.W.2d 649; Scharff v. McGaugh, 103 S.W. 550; Godchaux Sugars, Inc., v. Quinn, 15 S.W.2d 82; Commercial Bank of Boonville v. Kuehner, 115 S.W. 510; Goddard Peck Grocery Co. v. McCune, 25 S.W. 904. (3) L.G. Wood had the right to convey the land for valuable consideration to Nyle C. Wood and Maud A. Wood even though it would hinder and delay the plaintiff in realizing upon her claim. Secs. 3506, 3507, R.S. 1939; Hurley v. Taylor, 78 Mo. 238; Walsh v. Ketchum, 84 Mo. 427. (4) The statutes are inapplicable to deeds founded upon a valuable consideration. Young v. Keller, 16 Mo. App. 551; Eaton's Administrator v. Perry, 29 Mo. 96; Hurley v. Taylor, supra; Wilson v. Wilson, 165 S.W. 999. (5) The statutes are inapplicable to conveyances made by a debtor solely for the purpose of transferring property or in trust for another. Perkins v. Meigham, 49 S.W. 498; Fehlig v. Busch, 65 S.W. 542; Deberry v. Wheeler, 30 S.W. 338; Bangert v. Bangert, 13 Mo. App. 144; Erwin v. Holderman, 5 S.W. 36. (6) Under Secs. 3508 and 3512, R.S. 1939, respondents Agnes Anderson and Emil Anderson are protected from the applicability of Secs. 3506 and 3507, R.S. 1939. Secs. 3508, 3512, R.S. 1939. Secs. 3508, 3512, R.S. 1939; Davis v. Ownsby, 14 Mo. 170; Houston v. Sparks, 230 S.W. 70; Givens v. Burton, 183 S.W. 617; Dixon v. Dixon, 181 S.W. 84; Page v. Hill, 11 Mo. 149; Reynolds v. Faust, 77 S.W. 855; Wilson v. Parke, 96 S.W. 244; Miller v. Allen, 192 S.W. 967; Petrings v. Kuhs, 171 S.W.2d 635; Gehlert v. Smiley, 114 S.W.2d 1029; Wineland v. Coonce, 5 Mo. l.c. 296; Crockett v. Risque and McGuire, 10 Mo. 34; Knox v. Hunt and LaBeaume, 8 S.W. 174; Gordon v. Ritenour, 87 Mo. 54; Craig v. Zimmerman, 87 Mo. 475; Williams v. Mackey, 61 S.W.2d 968; Tydings v. Pitcher, 82 Mo. 379; New England Natl. Bank v. Northwestern Natl. Bank, 71 S.W. 191. (7) No evidence whatever was adduced that the deed from L.G. Wood to Nyle C. and Maud A. Wood was never delivered. McReynolds v. Grubb, 51 S.W. 822; Peters v. Berkemeier, 83 S.W. 747; Deer v. King, 30 S.W.2d 980; Eau Claire v. Anderson, 13 Mo. App. 429; Miller v. McCaleb, 106 S.W. 655; Derry v. Fielder, 115 S.W. 412; Coulson v. Coulson, 79 S.W. 473; Clark v. Skinner, 70 S.W.2d 1094; Fenton v. Fenton, 168 S.W. 1152; Sneathen v. Sneathen, 16 S.W. 497; Shanklin v. McCracken, 52 S.W. 339; Jones v. Jefferson, 66 S.W.2d 555.
This is a suit to quiet title to an apartment house in Kansas City. The petition follows the form set out in the statutes appended to Section 1684, R.S. 1939 on quieting title. It merely states that plaintiff owns the property and defendants are claiming some interest therein. The chief defendant, Agnes Anderson, in her answer states that she purchased the property [41] for a valuable consideration and is a bona fide and innocent purchaser.
The facts show that plaintiff had instituted a prior suit against one L.G. Wood. By a deed dated some six months prior to the filing of that suit but recorded after it was filed, L.G. Wood conveyed the property to his son, Nyle Wood, for a recited consideration of one dollar and other valuable considerations. Plaintiff recovered judgment in her prior suit against L.G. Wood and had execution issued. A levy against the interest of L.G. Wood in said property was made and notice of it filed in the recorder's office. A month later Nyle Wood conveyed the property to Agnes Anderson, defendant in the present suit. Some time after the conveyance there was a sale under the execution and the present plaintiff was the purchaser. Then she filed this suit.
The pleadings present strictly a suit at law. Plaintiff's reply alleged that Nyle Wood had no interest in the property and therefore no authority to convey it to Agnes Anderson. At the trial plaintiff attempted to prove that L.G. Wood had never delivered to Nyle Wood the deed transferring the property to him. By her evidence she tried to show that L.G. Wood took the deed to the recorder for recording, received it back from him, and then kept it in his possession. She was relying on the rule found in 26 C.J.S., sec. 44: "The mere recording of a deed which the grantor thereafter retains in his possession does not, in the absence of other circumstances showing an intention by such act to deliver the instrument to the grantee, operate as a delivery to him." This court has followed that rule and held the recording of a deed does not of itself operate as a delivery of the deed. Cravens v. Rossiter, 116 Mo. 338, 22 S.W. 736.
However, plaintiff did not sustain the burden of proving the deed was not delivered or accepted. Even though the testimony of the deputy recorder had substantially established the fact, which it did not, that L.G. Wood had filed the deed for record and then received it after recording, it would not have been sufficient to prove the deed was not delivered or accepted. A deed may be accepted after recording and when such is done the conveyance is valid, although the recording of a deed will not of itself constitute a delivery to the grantee in the absence of an acceptance by him of the instrument. Miller v. McCaleb, 208 Mo. 562, 106 S.W. 655.
It is fundamental that acceptance of a deed is necessary to its validity. Clark v. Skinner, 334 Mo. 1190, 70 S.W.2d 1094. There are no hard and fast rules as to what constitutes sufficient acceptance. Acceptance may be shown by the acts and conduct of the grantee. Jones v. Jefferson, 334 Mo. 606, 66 S.W.2d 555, 26 C.J.S. Deeds, sec. 51 (b). A conveyance of the property by the grantee, as the grantee did in this case, is "tantamount to an assent to and acceptance of delivery of the first deed conveying the land to him." Keener v. Williams, 307 Mo. 682, 271 S.W. 489. Thus, from plaintiff's own evidence we find the deed was accepted.
After failing to establish non-delivery and non-acceptance of the deed, plaintiff changed her trial theory. She decided to proceed on the ground the deed from L.G. Wood to his son Nyle was fraudulent and void against creditors. At first the learned trial judge pointed out that fraud was not pleaded. However, he announced he would hear any evidence plaintiff had on that ground. Plaintiff was unable to produce evidence to prove fraud and judgment was entered for defendants.
Plaintiff contends in this court that the deed from L.G. Wood to his son is "absolutely void" on its face so far as plaintiff is concerned because it is a voluntary conveyance. But the recited consideration of "one dollar and other valuable considerations" does not thereby make the deed a voluntary conveyance. In Commercial Bank of Boonville v. Vollrath, 135 Mo. App. 63, 115 S.W. 510, a case of fraudulent transfer, the court said: "Where there is a valuable consideration for a transfer, no matter how trivial or inadequate it may be, the conveyance is not voluntary and, therefore, not presumptively fraudulent. In such cases, actual intent to defraud must be found as a fact in order [42] to defeat the conveyance." And see Gentry v. Field, 143 Mo. 399, 45 S.W. 286. Cases holding the fact that a deed has a recited consideration of "one dollar" or "one dollar and other valuable considerations" is not sufficient of itself to establish such a deed as a voluntary conveyance are: Brown v. Weare, 348 Mo. 135, 152 S.W.2d 649; Gromer v. Molby, 385 Ill. 283, 52 N.E.2d 772; Glenn v. Tankersley, 187 Ga. 129, 200 S.E. 709; Scott v. Grew, 301 Mich. 226, 3 N.W.2d 254, 141 A.L.R. 819; Blanchard v. Kingston, 222 Mich. 631, 193 N.W. 231.
Thus, the mere production of the deed in question, without more did not establish it as a voluntary conveyance. If there had been some evidence of the fact it was a voluntary conveyance, then a different situation would be presented, but that fact was not proved. Nor were any other facts proved which established fraud.
While inadequacy of consideration in the conveyance of property by an insolvent debtor is held to be a badge of fraud, yet it is not generally regarded as sufficient alone to raise a legal inference of fraud unless so gross as to create the assumption the conveyance could not have been made in good faith. Munford v. Sheldon, 320 Mo. 1077, 9 S.W.2d 907. Also a conveyance from father to child, under certain circumstances, will be closely scrutinized but the existence of the relationship does not of itself establish fraud in the transfer. Moberly v. Watson, 340 Mo. 820, 102 S.W.2d 886. Even considering these two factors together, fraud is not established in this case because plaintiff did not prove that the actual consideration was inadequate and the conveyance rendered the father insolvent; nor, did she prove any facts which would give rise to a presumption of fraud when considered in connection with the relationship of the parties to the deed. She did not make a prima facie case. She has the burden of proof in this kind of case just as a plaintiff has in any other. It is not until she has established badges of fraud sufficient to raise a presumption of fraud that the burden of explaining the transaction and showing its good faith shifts to the parties to such conveyance. Oetting v. Green, 350 Mo. 457, 166 S.W.2d 548.
Since plaintiff failed to make a prima facie case the only recourse left to the trial court on the record before it was to enter a judgment finding for defendants and adjudging title in defendant Agnes Anderson.
The judgment is affirmed. All concur.