Appleman v. Appleman

Brace, J. This is an action brought by a number of the heirs at law of Levi Appleman, deceased, against [312] the other heirs of said, deceased, for partition of the real estate of which the said Appleman died seized, alleged to be three hundred and three acres as described in the petition. The only contested issues in the case arise upon the answer of the defendant Mary J. Apple-man, a daughter of said deceased, who therein claimed that in the month of September, 1886, her father, the said Levi Appleman, in consideration of service theretofore rendered him, by his warranty deed duly signed, sealed, and acknowledged, conveyed, to her, of the land described in the petition, “the northeast quarter of section 25, township 52, range 12, containing one hundred and sixty acres, and delivered the same to one Gr. W. Holloway for her; that afterward and while the deed remained in the hands of said Holloway, the same was lost or destroyed,” and prayed that the title to said one hundred and sixty acre tract be vested in her. Issue upon this answer was joined by plaintiffs in which, after a general denial of the allegations of the answer, it was averred that if there was a deed made as alleged in said answer, that the said Levi Appleman at the time of the making thereof was of unsound mind and incapable of making a valid conveyance, that the same was without consideration and was never accepted by said Mary J. Appleman. The issues were tried by the court and found for the defendant Mary J. Apple-man and the title to said one hundred and sixty acres decreed to her, from which decree the plaintiffs appeal. After a careful consideration of all the evidence in the case we return the following answers to the questions raised by counsel for appellants in their brief. 1. It appears satisfactorily from the evidence that on the eleventh day of September, 1886, the said Levi Appleman, by his general warranty deed of that date, conveyed the said tract of one hundred and sixty acres to his daughter Mary J. Appleman in considera [313] tion of the love and affection which he bore her, and of the obligation he felt he was under to her for her long and faithful service to him after she had arrived at the age' of maturity. That said deed was duly signed, sealed, and acknowledged before Gr. W. Holloway, a justice of the peace, and with another like deed for other land executed in the same manner to his grandson Bell Jackson Appleman, was delivered to the said Holloway with the direction “to take these deeds and hold them until they ave called for by the proper persons.” That the said Mary J. Appleman knew at the time or was thereafter informed that said deed to her had been so executed and assented thereto, and- thereafter in the lifetime of her father took possession of the premises. That said deeds remained in the possession of Holloway some time, when the deed to the grandson was called for and delivered to him. The deed of the daughter, remaining in his possession a still longer time, could not, when called for, be found, and remained lost at the time of the trial. Under these circumstances we think the deed was well delivered, the rule being in respect to a grantee not under disability “that when such grantee is aware of the conveyance, and does not dissent, and the conveyance is positively beneficial to him or her, acceptance will be presumed.” Hall v. Hall, 107 Mo. 101; Standiford v. Standiford, 97 Mo. 231. There can be no question but that the “direction to deliver the deed to the proper person” was a direction to deliver it to the grantee Mary J. Appleman, andas the deed took effect and the title passed to her at the date of the, delivery to Holloway, the subsequent loss of the deed could in no way affect her rights under the deed. 2. The weight of the evidence is that the said Levi Appleman, at the time of the execution of the deed, was of sound mind and capable of disposing of [314] his property in a rational manner, and that he made the conveyance freely and voluntarily with full knowledge of his property, situation, surroundings, and circumstances and of all those who had any claims upon his bounty. 3. The court committed no error in taxing the costs of the’ trial of this issue against the plaintiffs; they alone contested the issue, and having lost it, should pay the costs. Finding no error, the judgment is affirmed. Barclay, P. J., Macearlane and Robinson, JJ., concur.