Miller v. McCaleb

GRAVES, J. Action in partition, by petition in the usual form, with prayer for the partition ox sixty acres of land in Dade county, and for account of rents and profits alleged to have been had and received by one of the defendants. The plaintiffs, Kate Miller — 566 — and Lidia A. Forrest, and the defendants S. A. McCaleb and C. A. McCaleb, are children of Ethelbert A. McCaleb, who died in the year 1901, and the only answering defendant is Ara E. McCaleb', the second wife and widow of the said Ethelbert A. McCaleb. The four children of the said Ethelbert, made parties to this action, are children by his first wife. The deceased, Ethelbert A. McCaleb, and the defendant Ara E. McC'aleb were married in 1871. At the institution and trial of this suit there were two children of the second marriage alive, but they were not made parties. They testify as witnesses, however. The answer of Ara E. McCaleb, the only answering defendant, was a general denial. Plaintiffs base their claim on the following deed: “Know all men by these presents, That William F. Dry and Emily J. Dry, of the county of Dade in the State of Missouri, hath this day, for and in consideration of the sum of six hundred and thirty dollars, to the said William F. Dry and his wife Emily J. Dry in hand paid by Ara E. McCaleb (wife of Ethelbert A. McCaleb) and the lawful heirs of the said Ethelbert A. McCaleb, of the county of Lawrence in the State of Missouri, granted, bargained and sold, and by these presents do grant, bargain, sell and convey unto the said Ara E. McCaleb and the lawful heirs of the said Ethelbert A. McCaleb, the following tracts or parcels of land situated in the county of Dade, in the State of Missouri, that is to say: The north half of the east half of the southwest quarter and the north half of the southeast quarter of the southwest quarter of section 26, township 30, range 28; also the east half of the north half of the northeast quarter of the southeast quarter of section 33, township 30', range 27, containing in all seventy acres more or less. “To have and to hold,thepremisesherebyconveyed, with all the rights, privileges and appurtenances there — 567 — to belonging or in any wise appertaining nato the said parties of the second part, their heirs and assigns forever, and the said William P. Dry and Emily J. Dry, his wife, hereby covenanting to and with the parties of the second part, their heirs and assigns, for themselves, their heirs, executors and" administrators, to warrant and defend the title of the premises hereby conveyed against the claim of any person whatsoever. “In testimony whereof, we have hereunto subscribed our name and affixed our seals this 22nd day of April, in the Year of our Lord, one thousand, eight hundred and seventy-two. “William F1. Dry, (seal) Emily J. Dry, (seal.)” This deed was acknowledged before Wm. Yan Horn, justice of the peace, on the date thereof. It was filed for record April 24, 1872, and duly recorded in book 16 at page 519 thereof of the deed records of said county. On the back of the original of this deed appears this endorsement: “Warranty deed from William F. Dry and Emily J. Dry to Ara E. McCaleb. “State of Missouri, County of Dade... ,ss. This deed was filed for record in my office on the 24th day of April, 1872, at the hour of......o’clock... .M, and duly recorded in Book 16, page 519. No. Due. Paid fee $1.00. “Arch M. Long.’- The plaintiffs introduced the record of this deed and the answering defendant produced the original. There is no difference between the record of the deed and the original, nor of the certificates of acknowledgment and other endorsements thereon, except on the original appears a cancelled United States revenue stamp. Defendant placed in evidence another deed identical in form except as hereinafter noted, of the same — 568 — date, acknowledged on the same date by the same justice of tbe peace, having the same grantors and conveying the same land. The only difference is in the names of the grantees. In this last-mentioned deed the grantees are “Are E. McCaleb' and Ethelbert A. McCaleb, her husband,” instead of “Ara E. McCaleb and the lawful heirs of the said Ethelbert A. McCaleb,” as in the deed first fully set out hereinabove. This deed has endorsed on the back thereof, the following: “Warranty Deed from William P. Dry and Emily J. Dry to Ara E. McCaleb and Ethelbert A. McCaleb. ’ ’ This deed has no revenue stamp and had not been recorded. Defendant also offered in evidence a mortgage dated April 22, 1872, to secure two notes of $215 each; in this mortgage the grantee is William P. Dry, and he is also the payee in the two notes described therein, and the land conveyed is the same involved in this suit. The notes are signed by Ethelbert A. McCaleb, and he signs the mortgage with his wife, but the first part of the mortgage reads: “This indenture, made and entered into this twenty-second day of April, A. D: 1872, by and between Are E. McCaleb, wife of Ethelbert A. McCaleb, in the county of Lawrence and State of Missouri of the first part, and William P. Dry of the county of Dade, State of Missouri, of the second part, witnesseth:” This mortgage was likewise acknowledged before Van Horn, justice of the peace. Such is the documentary evidence in the case. By oral proof it appears that about the time the land was purchased from Dry, Mrs. McCaleb received quite a sum of money from an estate, and there is testimony tending to show that a part of this money went into this land; that the four McCaleb children by the first wife paid nothing on the land; that McCaleb and wife, with these four children, then all minors, moved and lived upon this land; that the children would leave — 569 — upon attaining their majority; that McCaleb lived there until his death in 1901; that after his death, his widow either occupied it in person or by her tenant up to the trial, and was occupying it by tenant at the trial; that one of the sons rented the land of the father and paid him rent. Mrs. McCaleb testified about the making of the two deeds, but upon some points she is somewhat mixed and confused. As best we gather her testimony, it is to the effect that she understood that the deed which we first herein set out in full was made to her alone; that it was concluded to make one to both of them, and the second deed mentioned above was made; that she understood that this second deed was the conveyance and it was taken home and kept there, but not recorded; that she always claimed under this unrecorded deed; that she had no knowledge that McCaleb’s heirs were parties to the first deed until told by Wheeler, , the administrator of her husband’s estate, and did not even know that it was yet in existence, until that time. On this last point she is corroborated by testimony tending to show that the words, “Ara E. McCaleb and .the lawful heirs of the said Ethelbert A. McCaleb,” whenever they appear in the first deed, were in the handwriting of Ethelbert A. McCaleb, whilst other portions were not. The evidence is conflicting as might be expected upon what the father said about the title to the place, but the preponderance thereof is to the effect that he said the place belonged to defendant Ara E. McCaleb. At one time when making a mortgage in an attorney’s office, he refused to put in the land in' dispute. The scrivener was getting the land numbers from some abstract books, and when he called off the numbers of the land in dispute here, the deceased asked, ‘ ‘ That the Dry land?” and being informed that it was he then — 570 — said, “I don’t want to put that in; that belongs to the old woman.” It should also be stated that Mrs. McCaleb testified in cross-examination that the deed having her name endorsed on the back was the deed which she thought she claimed under, and this is the first deed we have hereinabove set out. On this point she was evidently confused. Upon the conclusion of the evidence we find this in the record: “At the close of the evidence plaintiff’s counsel requested the court to state in writing the conclusions of fact found separately from the conclusions of law. Which request the court refused, stating that in equity cases the court was not required to so state its findings. To which ruling of the court, plaintiff then and there excepted.” And thereupon judgment was entered in this language: “Kate Miller and Lydia A. Forrest, Plaintiffs, vs. Ara E.. McCaleb, Samuel A. McCaleb and Clarence A. McCaleb, Defendants. “Judgment vs. Plaintiff for costs and dismissing petition and finding that land is owned by Ara E. McCaleb. “Now at this day comes the plaintiffs, Kate Miller and Lydia A. Forrest, by their attorneys, and also come the defendants, Ara E. McCaleb, Samuel A. McCaleb in person, and by their attorneys, and the defendant, Clarence A. McCaleb, although duly and legally notified of the commencement, object, general nature and pendency of this action by an order of publication duly published in the 'Lockwood Missourian,’ a weekly newspaper regularly printed and published in Dade county, Missouri, for four weeks successively, the last insertion being more than thirty days before the first day of the present term of court, now comes not but — 571 — makes default; and this cause coming on to be beard and all and singular the matters herein being seen, heard and fully understood, the court finds: “That this is an action for partition, and that it is stated in the plaintiff’s petition that the plaintiffs and defendants are the owners of and seized as tenants in common of the following described real estate in I)ade county, Missouri, to-wit: The northeast quarter of the southwest quarter and the north half of the southeast quarter of the southwest quarter of section 26 in township 30 of range 28, and the northeast quarter of the northeast quarter of the southeast quarter of section 33 in township 30 of range'27, and that the five persons named as parties to this action are each entitled to an undivided one-fifth of said-land; and it is also alleged in the petition that the defendant Ara E. McCaleb since the......day of........, 1872, has enjoyed exclusively the rents and profits of said premises. “The court from the evidence further finds that the defendant Ara E. McCaleb is the owner in fee of the above-described real estate, and that plaintiff's Kate Miller and Lydia A. Forrest and the defendants Samuel A. McCaleb and Clarence A. McCaleb have no right, title or interest in said land, or the rents and profits thereof, and that the plaintiff’s petition ought to be dismissed at their cost. “It is therefore considered, adjudged and decreed by the court that the defendant Ara E. McCaleb' is the owner in fee simple of the said above-described real estate, and that the said Kate Miller, Lydia A. Forrest, Samuel A. McCaleb and Clarence A. McCaleb, the other parties to this action, have no right, title or interest therein, and that the plaintiff’s petition he dismissed, and that the plaintiffs pay the costs of this action, and that execution issue therefor.” We quote these matters fully for the reason that — 572 — great stress is placed upon them in the briefs of plaintiff. The foregoing sufficiently states the case, except that the evidence may be noticed more in detail later. I. The first proposition urged for a reversal of this case is the refusal of the trial court to make and file findings of fact separate from the conclusions of law. This question is vehemently pressed. The statuté upon the subject is Revised Statutes ISM1, section 695, and reads: “Upon the trial of a question of fact by the court, it shall not be necessary for the court to state its finding, except generally, unless one of the parties thereto request.it with the view of excepting to the decision of the court upon the questions of law or equity arising in the case, in which case, the court shall state in writing the conclusions of facts found separately from the conclusions of law.” This statute was borrowed from Kansas, and Maceaklane, J., in Blount v. Spratt, 113 Mo. l. c. 53, thus describes its origin, history and effect upon our practice: “This section was first incorporated into our code in the revision of 1889;, and has never been the subject of consideration by this court. It was borrowed almost literally from' section 2135 of the code of procedure of Kansas (Revised Statutes, 1889') and the practice authorized has often been approved by the Supreme Court of that State, and has been applied in the trial of cases, both at law and in equity, though the section of the Kansas law makes no provision in express terms for taking exceptions to the decisions of the court upon questions of equity arising in. the case, as is provided by the section of our code in question. The Supreme Court of Kansas, as we understand its decisions, not only applies the provisions of the section to the practice in equity cases, ‘but will not disturb the finding-if there is sufficient evidence to justify it; and this is — 573 — the case, though the finding of the court is contrary to the judgment of the appellate court.’ [Beaubien v. Hindman, 37 Kan. 228; Weil & Co. v. Eckard, 37 Kan. 696.] “Under the practice in this State equity cases have been practically triable de novo in the appellate court. This court, while deferring somewhat to the conclusions of fact reached by the trial courts, has not been bound by its findings of fact nor its conclusions of law thereon, but has exercised a supervisory control over both. In order that the evidence in cases of eqiutable jurisdiction may be reviewed upon appeal, the rules of this court require that the whole of the evidence shall be embodied in the bill of exceptions. [McElroy v. Maxwell, 101 Mo. 294; Benne v. Schnecko, 100 Mo. 250; Rule 7 of practice in this court.] “It is now insisted by respondent that as defendant, who is appellant here, has failed to embody all the evidence in the bill of exceptions, in compliance with the rules of court, his appeal should be dismissed or the judgment affirmed. “We do not think it was the intention of the Leg-islature, by adding this section to the code of procedure, to abrogate the practice of this court so long followed of supervising the findings of the trial courts in equity cases. If the evidence was before us on proper exceptions, we could review it and determine for ourselves the correctness of the findings.” And in discussing this statute, in case of Gaines & Co. v. Whyte Grocery Co., 107 Mo. App. l. c. 532, Smith, P. J., aptly said: “The defendant’s final contention is, that the trial court erred in its refusal to make special finding of the facts and conclusions of law thereon. The statute (section 695) doubtless applies to both legal and equitable actions, but while this is so, we do not think the failure to make a special finding in an action of — 574 — the latter kind constitutes a reversible error, because tbe supervisory courts are authorized on appeal to try and determine such actions upon tbe pleadings and evidence de novo. Tbe -findings of tbe trial court, if any, may be entirely disregarded by tbe former tribunal and such findings and decree entered therein as seem to it to be meet and proper. Tbe Legislature did not, by tbe enactment of the statute already referred to, intend to abrogate tbe well and long established practice of tbe appellate courts in supervising tbe findings of trial courts in equity cases, or to deprive tbe former of tbe jurisdiction to determine for themselves tbe correctness of tbe findings of tbe latter. [Blount v. Spratt, 113 Mo. 48; McElroy v. Maxwell, 101 Mo. 294; Benne v. Schnecko, 100 Mo. 250.] If tbe supervisory courts are not bound by tbe findings of tbe trial courts, or their conclusions of law in equity cases, but may review tbe whole evidence and determine for themselves what tbe findings of facts and conclusions of law should be, it is difficult to see bow a party could be prejudiced by tbe failure of tbe trial court to make special findings of fact in such cases. ‘ ‘ The failure, therefore, of tbe court in- the present case to make special finding of facts was not such an error as requires a reversal of tbe decree; and especially so, since it was, as we think, clearly for tbe right party, and tbe only one that could have been given in tbe cause. ’ ’ This statute has been subsequently discussed in very recent equity cases. In Fitzpatrick v. Weber, 168 Mo. l. c. 572, Marshal, J., speaking for tbe court, said: “And if tbe circuit court bad found any fact that would give support to such conclusion, this court would not have been bound by that finding, and would review tbe evidence and render tbe proper judgment in tbe case notwithstanding tbe judgment or tbe find — 575 — ing of facts by the trial court, because this is a proceeding in equity, and section 695, Revised Statutes 1899, requiring the trial court to make a separate finding' of facts, was not intended to have and did not have any effect upon the power or duty of this court in equity cases.” Approving and to the same effect is the language of Lamm, J., in Shaffer v. Detie, 191 Mo. l. c. 387. In the more recent case of Patterson v. Patterson, 200 Mo. 335, all of the cases above cited are approved and the force of the rule of this court in equity cases, minutely and fully discussed by Judge Valliant. In the Patterson case there was a finding of facts, which finding the clerk had copied into the judgment. Upon the finding of facts it was contended, with much force, that the judgment was erroneous. This court held, however, that we would not disturb the judgment, although we might determine that the facts found by the chancellor below did not. support the judgment. We then held and now hold, that, in equity cases, it is not only the privilege but the duty of this court to examine the evidence and draw our own conclusion of fact as well as of law. Hence the rule that requires all the evidence in such cases to be laid before us. Now with these conditions existing in our practice, what harm has resulted to the plaintiffs by reason of the court’s failure and refusal to make a special finding of facts, separate from the conclusions of law ? The trial court, under the statute, giving the statute its fullest sweep, should have made the findings as requested, but in equity cases no prejudicial error results. We are in no way bound by such findings. The judgment we enter here in equity cases is a judgment emanating from the conscience of this court and not one from the conscience of the court nisi. To satisfy that conscience we must and do examine and find the facts for ourselves. Seeing no reversible error in the — 576 — point made, it is accordingly ruled against the plaintiffs. II. Plaintiffs claim their interest in this property through the deed which we have set out in full. Defendant says that such a deed was never delivered to her or any of the parties named therein. The natural order would he to take up the question of delivery first, and if there was, delivery, then, we can consider the effect of the deed. This question will require a little closer review of the facts. This first deed was practically all in the handwriting of the deceased husband. The second deed was in the handwriting of the justice of the peace. Both were written on the same day. It clearly appears that the first intention of the parties was to deed the land to Mrs. McCaleb. The endorsement on the back of the first deed was that way, but the name of the grantees, written in by McCaleb, were “Ara E. McCaleb and legal heirs of Ethelbert A. McCaleb.” The justice says that his impression is that the deed was practically written when the parties arrived. Mrs. McCaleb' says •that they afterwards concluded to change it and make the deed to both of them. Such a deed was made and appears in the handwriting of the justice. This last deed remains there with the family until this lawsuit. Mrs. McCaleb says that she knew of no other, nor did she know of the record of another. Evidently, so far as this evidence shows, there was no delivery to her of this first deed and no consent by her as to its record. Nor is there evidence of a delivery to any heirs of Ethelbert McCaleb, except the presumption raised by the record of the deed. There is evidence from the plaintiffs that the McC'alebs were constantly quarreling over the money received by the wife from her father’s and mother’s estate. The evidence does not clearly disclose from what source the original of this first deed came, except that Mrs. Mo577 Caleb was told of it by tbe administrator of her bus-band’s estate. Sbe says tbat this is ber first knowledge of its existence in tbe form it now stands. Her attorneys put it in evidence. Nor does the record show just bow tbe last deed was kept at tbe home for these thirty-two years, but sbe says tbat it was there and tbat sbe thought it was their title to tbe land and sbe produces the deed at tbe trial. It must further be borne in mind tbat tbe express consideration in tbe deeds was six hundred and thirty dollars, and on the same day tbe grantor, Dry, took back a mortgage for $430, so tbat evidently be was paid only $200 on tbe deal. Now this mortgage is signed by both McCaleb and wife, but tbe grantor therein is named thus: “Ara E. McCaleb, wife of Ethelbert A. McCaleb ... of tbe first part.” This would indicate that Dry thought tbat tbe title was in Mrs. McCaleb and yet it would further indicate tbat be knew nothing of tbe heirs of Ethelbert McCaleb' having any interest. He would hardly be taking a mortgage back for more than two-thirds of tbe purchase money, knowing that Mrs. McCaleb bad only a one-fifth interest at most. On tbe other band if the mortgage was made after tbe second deed, it would seem tbat both of tbe McCalebs would have been made grantors. This circumstance lends little light as to what deed Dry intended to deliver, but it does lend much, light upon the question as to bow be understood the first deed to read. If it be said tbat be took tbe mortgage in response to the first deed, thus it clearly shows tbat be bad no idea of having granted any land to these plaintiffs or to any heirs of Ethelbert McCaleb. On tbe other band be might have thought tbat, inasmuch as tbe name of Mrs. McCaleb appeared first in tbe second deed and both of them signed tbe mortgage, bis security was good. The only clear fact tbat we can draw from — 578 — the circumstance is that Dry, .the grantor,. evidently did not intend to deed and did not think he had deeded •property to the heirs of McCaleb. There would be more in the circumstance that McCaleb said the land belonged to his wife. But this is weakened by the fact that McCaleb' had placed of record a deed giving her but little interest therein, if the deed is valid as to his heirs. He might have made a mistake and recorded the wrong deed, and when making this statement might have thought that the second deed was the one of record. So this fragment of testimony, whilst valuable upon other aspects of the case, is of but little value upon the question of which deed was actually delivered and accepted by the grantee Ara E. McCaleb. So that, after all, we can only take these circumstances in connection with the testimony of Mrs. McCaleb to determine this matter. There can be no delivery of a deed, when the grantee is an adult, without an acceptance ' by the grantee. In 13 Cyc. 570, the doctrine is thus tersely stated: “It is essential to the validity of a deed that there should be an acceptance of the instrument by the grantee. But delivery of a deed implies its acceptance by the grantee, in the absence of fraud, artifice or imposition.” Nor does the recording of a deed, to such a person constitute a delivery without such acceptance. The law on this proposition is summarized in 13 Cyc. 571, in this way: “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; but if subsequently accepted the deed will be valid. The same rule applies to the delivery of a deed for record.” In the case of Stallings, Trustee v. Newton, 110 Ga. 875; the syllabus, which summarizes the context of the opinion, reads: — 579 — “1. Delivery of a deed conveying real property is essential to its validity, and is only complete when the deed is accepted. “2. A proper and legal registry of an instrument raises a presumption of delivery, sufficient to establish the fact, unless rebutted. An unauthorized registry raises no such presumption, and in that case the validity of the instrument is not established until delivery is affirmatively shown.” In Meigs v. Dexter, 172 Mass. l. c. 218, Knowlton, J., said: “We are of the opinion that the instruction was erroneous in omitting to embody the requirement that there should be an acceptance of the deed by some one representing the grantee. It is well settled in this Commonwealth that the delivery of a deed is not complete and effectual without an acceptance by the grantee, or by some one authorized to represent him, or who assumes to represent him, and whose act of acceptance is afterwards ratified. [Hawkes v. Pike, 105 Mass. 560; Commonwealth v. Cutler, 153 Mass. 252; Barnes v. Barnes, 161 Mass. 381.]” In Moore v. Flynn, 135 Ill. l. c. 79, that court speaks as follows: “To render a deed operative to pass title there must be not only a delivery of the deed by the grantor, but also an acceptance thereof by the grantee. The acceptance of the conveyance by the grantee is as essential as the delivery by the grantor, and where the acceptance is not proven, and the facts do not .justify the presumption of law that the grantee has accepted, the title does not pass. [5 Am. and Eng. Ency. Law, 446, and cases cited; Wiggins v. Lusk, 12 Ill. 132; Kingsbury v. Burnside, 58 Id. 310; Dale v. Lincoln, 62 Id. 22.] In respect to a grantee who is not under legal disability, the rule is, that when such grantee is aware of the conveyance, and does not dissent, and the conveyance is positively beneficial to him or her, acceptances will be presumed, but that no — 580 — presumption will arise so long as the grantee is ignorant of the conveyance. [5 Am. and Eng. Ency. Law, 444, and authorities there cited.] ” And again, the Indiana Supreme Court, through Elliott, J., in Bremmerman v. Jennings, 101 Ind. l. c. 256, says: “The act of Sturdevant in placing the deed to Joseph L. Jennings on record worked no estoppel in favor of the appellants. That act did, it is true, make a prima-facie case in their favor upon the question of delivery, but it did no more, and this primarfacie case was explained by the evidence. It is essential to the delivery of a deed that there should be an acceptance by the grantee; a delivery does, indeed, import an acceptance, and the evidence here shows no acceptance. It cannot be presumed that Joseph L. Jennings accepted the deed and thus divested the prior rights of his wife, and we know of no rule that will permit his creditors to insist that he shall treat the delivery as valid, to her prejudice and their gain.” Our own court, in Hall v. Hall, 107 Mo. l. c. 107, has announced the doctrine thus: “To operate as a complete and effectual conveyance of land, a delivery of the deed, actual or constructive, by the grantor and an acceptance by the grantee, or by some one for him, are essential requisites. These are the final and crowning acts in the conveyance, without which all other formalities are ineffectual. The grantor must part with the deed and all right of dominion over it, intending that it shall operate as a conveyance, and the grantee must accept it.” This case has been since followed in several cases. From the positive evidence in this record it is clear that Mrs. MeCaleb never accepted the deed placed of record; that she never authorized its record, and knew nothing about it being placed of record; that during all this time she was relying, as she had a right to '-rely, upon the deed, the possession of which she — 581 — had, and which created an estate in her much more valuable than the other deed if it is to be given the construction contended for by plaintiffs. We are not advised upon what theory the chancellor below found for her, but in our judgment there was no acceptance by her of the deed which was of record, and if not, it is no deed for want of delivery. She would1 therefore hold under the second deed. This obviates further discussion of points made. The judgment below is right and will be affirmed. All concur.