Burchett v. Fink

1. BILLS AND NOTES: Delivery Necessary to Pass Title. The owner of certain notes indorsed them in due form to her son, remarking at the time that when the son returned she would give them to him. She then put the notes into her private safety box, where they were found after her death. The notes were subsequently turned over to the son- who sold them, the purchaser having actual knowledge of the facts surrounding the change of possession of the notes. Eeld, that there was no delivery of the notes to the son and no title in the purchaser; that the title to the notes passed to her administrator on the owner’s death. 2. -: -: Administrator Can Transfer Title Only In Manner Provided by Statute. The administrator can transfer title to decedent’s notes only by operation of law in the manner provided by statute. 3. —-—: -: Gift. A gift is a contract executed; and as the fact of execution is delivery, it is of the essence of the title. It is the consummation of a contract which, without it, would be no more than a mere contract to give and without efficacy for want of consideration.

Appeal from Polk Circuit Court. — Hon. Argus Good, Judge. (1) An administrator with the will annexed may make a valid transfer of a promissory note. B aimer v. Sunder, 11 Mo. App. 454. (2) Before appellant Grimes can be defeated in this action it must be shown that his knowledge of defect or infirmity, if any, in the title of Burchett was such that his act in purchasing same amounted to bad faith. Session Acts 1905, secs. 56, 57, p. 250. (3) The fact of the indorsement of Mrs. Fleming to her son, Wm. Burchett, placing them in the box at the bank, to be delivered to him when she saw him, coupled with the fact that Fink, the administrator, did deliver them as she intended was such a delivery as to pass title to the notes, in the hands of W. W. Grimes. Giddings v. Giddings, 31 Am. R. 682; Welch v. Dameron, 47 Mo. App. 221; Fogg v. School Dist., 75 Mo. App. 159; Wood v. Flanery, 89 Mo. App. 632; School Dist. v. Sherdley, 138 Mo. 688. (4) Nothing less than fraud can now defeat the title of the purchaser of negotiable paper. Bank v. Stoneware Co., 4 Mo. App. 276. (5) There must be bad faith 'on his part. The good faith of the holder is the decisive test. Hamilton v. Marks, 63 M'o. 178; Johnson v. McMurry, 72 Mo. 278; Jennings v. Todd, 118 Mo. 296; Bank v. Hammond, 104 Mo. App. 402; Bank v. Stanley, 46 Mo. App. 440; Brown v. Hoffelmeyer, 74 Mo. App. 385. (1)' No title passes to an assigned note without delivery. Tiedeman on Commercial Paper (1 Ed.), sec. 109; Tiedeman on Commercial Paper, sec. 148; Lowrey v. Danforth, 95 Mo. App. 451; 1 Randolph, Commercial Paper (Ed. 1886), p. 339, secs. 220, 221; 1 Daniel on Negotiable Instruments (3 Ed.), sec. 64; 2 Am. and Eng. Ency. (1 Ed.), 342; Fagelsong v. Wickard, 75 Ind. 258. (2) An administrator has no authority to transfer the notes of an estate except under the circumstances authorized by statute. Cowgill v. Lenville, 20 Mo. App. 145; Marshall v. Meyers, 96 Mo. App. 648; Chandler v. Stevenson, 68 Mo. 450; Stagg y. Lumenfelser, 59 Mo. 336; Scudder v. Ames, 89 Mo. 52Ó. Statement. — The litigation in this case arises out of the conflicting claims of A. C. Fink, public administrator, in charge of the estate of Juda Fleming, deceased, and W. W. Grimes in regard to the ownership of certain notes. It is a proceeding in equity, instituted by Granville S. Burchett and Eliza Burchett, respondents, to compel A. O. Fink, as public administrator, and W. W. Grimes to interplead in order to determine to whom they should pay the notes in controversy. A summary statement of the facts in this case is as follows: In 1906, Juda Fleming sold to Granville S. Burchett certain lands in Polk county, Missouri, receiving as the purchase price seven notes numbered from one to seven. Six of said notes were for the principal sum of two hundred dollars each, and the seventh of the series was for two hundred and sixty dollars, and all of said notes were written on the standard forms of negotiable notes. Note number one was payable three years from date with interest at the rate of six per cent, per annum, and the others became due, one each year thereafter. Some time after making these notes, Juda Fleming took notes numbered one and three — being the notes in controversy — and had them indorsed in due form to her son, William B. Burchett, which' she duly attested by making her mark as her signature, and remarking that when Will who was living in Kansas should return, she would give them to him. She then took the notes to the Bank of Humansville, put them in her private safety box with her other private papers, where they were found after her death by the public administrator, A. O. Fink, when he went to make an inventory of her estate. When the witnesses to the inventory came across these notes, a question arose whether they should be inventoried as a part of her estate or delivered to the indorsee. William B. Burchett, who had come on to attend his mother’s funeral, was called into the bank and the notes were turned over to him, it being uncertain from whom he received the notes. On the same day, William B. Burchett sold and delivered these notes to W. W. Grimes, appellant, for three hundred and fifty dollars. The evidence shows the following facts in regard to Grimes knowledge at the time he purchased the notes: He knew that Juda Fleming was dead, and he was informed that the notes were found in Juda Fleming’s private box at the bank with her other papers at the time the inventory of her estate was being taken, and that the public administrator or some other person had turned these notes over to William B. Burchett. This case was heard by the circuit judge without the intervention of a jury, and judgment was rendered for A. O. Fink, the administrator, and against the defendant W. W. Grimes who thereupon perfected his appeal to this court.