Dohmen v. Schlief

MARSHALL, J. — This is an action for an accounting, wherein the petition alleges that there is due the plaintiff the sum of $7,069.44. There was a judgment for the defendants and the plaintiff appealed. The facts are as follows: The plaintiff is a very old man, being considerably over eighty years of age. On the twentieth of September, 1882, and for many years prior thereto, he had lived with his brother-in-law, C. W. Holtschneider, and his wife, a sister of the plaintiff. He had notes executed to him by said Holtschneider, which aggregated, to-wit, $4,457. Being desirous of securing a permanent home with his said relatives, he, on the day stated, entered into a written agreement with his said brother-in-law, whereby it was agreed that he would deliver up to his said brother-in-law, and his said wife, Regina, said notes, in consideration of which he, said brother-in-law, agreed to pay plaintiff during his natural life the sum of thirty dollars per month, of which ten dollars was to be applied to the payment of the board and lodging of plaintiff in his brother-in-law’s house, as long as plaintiff continued to live at his house, and at plaintiff’s death the said brother-in-law was to pay the principal represented by said notes as follows: to Mary Porth, daughter of Regina Holtschneider, the sum of one thousand dollars; to Jennie Reilly, daughter of said Regina, the sum of one thousand dollars; to Ludwig Reilly, son of said Jennie Reilly, the sum of two hundred dollars; to Henrietta Schlief, daughter of said Regina, the sum of twelve hundred dollars, and the remainder to said Regina. It is alleged in the petition that Regina signed this agreement, but this is expressly denied in the answers, and there is no competent evidence in the record that she ever did so. The petition alleges that in this way a trust fund was created, and that said C. W. Holtschneider and Regina became thereby trustees, and it is contended that [597] they thereby charged their real estate with said trust. But as Regina did not sign said agreement and did not at that time own any real estate, it cannot be successfully contended that she so created any trust either personal to herself or as to any real estate. It is also plain that there was no trust created by said C. W. Holtschneider that would attach to his real estate, but that it was a simple contract to board and lodge plaintiff and to pay him a certain sum per month for life and after his death to pay the principal sum to the persons named, which contract was in no proper sense a personal trust, but was a plain personal obligation to pay money and furnish board and lodging. Thereafter the plaintiff continued to reside with C. W. Holtschneider, but how long the evidence does not disclose. It was shown, however, that he has received in all from C. W. Holtschneider, Regina and the executors of the wills of their estates, only the sum of two hundred and fifty dollars in money. C. W. Holtschneider died testate May 13,1883, leaving certain real estate in St. Louis to his daughter Jennie Reilly, and the balance of his estate in Osage, Maries, Miller and Cole counties and in the city of St. Louis to his wife Regina, but the will expressly states that he is unable to give h particular description of it, and no attempt was made in this case to give a description of either the whole or any part thereof. The plaintiff offered in evidence a copy of an agreement that is alleged to have been made on September 10, 1886, between Regina Holtschneider and Henry Forth, her son-in-law, in which it is recited that C. W. Holtschneider' and Regina made the agreement with the plaintiff, of September 20,1882, hereinbefore referred to, which provided for the board of plaintiff, etc., and then recited that for the purpose of carrying out the-contract, said Regina conveyed to said Porth all the real estate in the city of St. Louis which she acquired under the will of her husband (no other descrip [598] tion is given), and whereby she provided further that the property should remain subject to her control and disposition during her life, and after her death it should be subject to the control and disposition of said Porth. She directed further that after her death her executors or administrators, out of the personal estate, should pay the money directed to be paid by said contract of September 20, 1882, and that “in fault” of such payments said Porth should sell the real estate conveyed by the agreement, and pay the same. This paper was dated September 10,'1886, but the uncontradicted evidence is that it was not signed until June 13, 1892, when it was signed by said Regina Holtschneider and Henry Porth, and acknowledged by said Regina, but it was never delivered by said Regina to said Porth nor to any one else, nor did said Porth ever have possession of it, but it remained in the possession of said Regina as long as she lived, and after her death it was found by Porth’s wife among her papers in her trunk. Upon this showing the chancellor found the fact to be that the instrument had never been out of the possession of Regina at any time, and never having been delivered it was of no legal force. The estate of O. W. Holtschneider was fully wound up years ago, and the plaintiff exhibited no claim against it. Regina Holtschneider died testate on January 2, 1900, leaving a legacy of fifty dollars to her daughter, Jennie Reilly, and bequeathing all the balance of her property to her daughters Mary Porth and Henrietta Schlief equally. Her will follows the language of her husband’s will, and refers to property in Osage, Maries,' Miller and Cole counties and in the city of St. Louis, and declares that she is unable to give a particular description of it. After her death the plaintiff instituted this action against her three daughters, Henrietta Schlief, Mary Porth (and their husbands) and Jennie Reilly, and the latter’s son, Ludwig Reilly, and against the executors of Regina’s estate. [599] As stated, the chancellor entered judgment for the defendants, and the plaintiff appealed. The plaintiff predicates a right to recover upon two premises, first, that C. W. Holtschneider and Regina, his wife, entered into the. contract with the plaintiff of September 20,1882, and second, that Regina recognized that contract and provided an estate upon which it should be a charge by her agreement or deed to Henry Porth, dated September 10, 1886, and acknowledged June 13, 1892. The defendants deny that Regina ever signed or executed the contract of September 20, 1882, and there is no evidence whatever that she ever did so, unless her statement in the deed of September 10, 1886, that she executed the contract with her husband, is evidence against her and her representatives that she did so. The trial court found that the deed of September 10, 1886, was never delivered by Regina, and its finding is in accordance with the uncontradicted evidence in the ease. This being true, the deed was of no force or validity in law. It follows, therefore, that the- statement therein contained that she executed the contract of September 20, 1882, with her husband, amounts to nothing, and is not binding upon her or her representatives. The contract of September 20,1882, was not produced or offered in evidence, and its absence is not accounted for, and there is no evidence as to its contents, nor in fact that there ever was such a contract at all. And if it were not for the admissions of the answer that such a contract was made by plaintiff with C. W. Holtschneider, there would be no foundation in the case for any reference to such a contract. This, however, .does not help the plaintiff’s case, for the answers expressly deny that Mrs. Regina Holtschneider ever signed the contract or was a party to it, and it is her heirs and her estate that are sought to be held liable in this action. There is, therefore, no evidence whatever to show that Regina Holtschneider ever entered into any such contract, and [600] hence her representatives can not be held liable by reason of any contract between her and the plaintiff. The only other pretended foundation for the claim is the deed of September 10,1892, to Henry Porth. But as this instrument was never delivered by her to Porth or to any one else, but remained in Regina’s possession during her life and was found among her papers after her death, it never ripened into a legal instrument and no one acquired any rights whatever under it. Delivery is necessary to make a deed or other written obligation effective and binding. [Hall v. Bank, 145 Mo. 418; Powell v. Banks, 146 Mo. 620; Mudd v. Dillon, 166 Mo. 110.] “An undelivered deed is of no more effect than if it were not signed.” [McVey v. Carr, 159 Mo. 648.] The plaintiff, therefore, wholly failed to make out any case, and the trial court properly entered a judgment for the defendants, and its judgment is affirmed. All concur.