Thummel v. Holden

BRACE, P. J.

This is an action in ejectment to recover a certain lot in block 2293 in the city of St. Louis, described by metes and bounds in the petition. The petition is in common form. Mary L. G. Thummel, the mother of the plaintiff, is the common source of title. Plaintiff claimed title by a quitclaim deed from her dated October 10,1894, and recorded October 16, 1894. The defendant claimed title under a warranty deed from her to George L. Taylor dated April 24, 1894, and recorded September 17, 1894, and by deed from said Taylor to himself dated September 12, 1894, and recorded October 30, 1894.

The deed of Mrs. Thummel to Taylor was made “subject to a certain deed of trust to Joseph Dormitzer’s trustee of $3,600, together with interest at the rate of six per cent from date hereof, due November 20, 1894; also subject to another deed of trust to the Allemania Building and Loan Association, trustee, dated October 23, 1891, recorded in book 1041, page 406;” and the quitclaim deed of Mrs. Thummel to the plaintiff was also made subject to the same incumbrances and contained this further recital, to wit: “And this conveyance is further made by said grantor with this declaration, that a certain deed purporting to have been executed by said grantor dated April, 1894, to one G. L. Taylor and recorded in book 1230, page '211, of the recorder’s office of the city of St. Louis, is absolutely void and of no effect, as this grantor had no transaction with or ever did make or deliver any deed to said Taylor for said property.” The deed from Taylor to the defendant was made subject to the same incumbrances.

. The answer of defendant admitted possession of the premises, denied the other allegations of the petition, gave a *682 history of the deeds from Mrs. Thummel to Taylor and the plaintiff; averred that he had paid off and discharged the incumbrances ; that the deed from Mrs. Thummel to the plaintiff was without consideration, made for the purpose of defrauding the defendant, and was a cloud upon his title; and prayed that the same be decreed to be void, that the title to the property be vested in him and that plaintiff and those claiming under him he forever enjoined from asserting title and for general relief. Issue upon the new matter set up in the answer was joined by reply. At the trial a jury was waived, and the whole case submitted to tbe court.' Tbe court found tbe issues on the petition, and on tbe cross-bill set up in tbe answer, for tbe defendant, granted tbe relief prayed for, and plaintiff appealed.

■The undisputed facts disclosed by tbe evidence are, that in tbe spring of 1894, one Lee S. Holden was engaged in business as a real estate agent in tbe city of St. Louis, having in bis office a scrivener by tbe name of Pritchard, in whose name it was bis custom to keep tbe titles of some of bis principals. That on tbe twenty-fourth of April, 1894, a trade between him and Mrs. Tbummel having been negotiated by which she was to exchange tbe lot in question, called tbe Cook avenue lot, for a lot in Forest Park place, tbe title to which was in tbe name of Pritchard, tbe same was on that day consummated by tbe execution of two deeds; one by Pritchard conveying tbe Forest Park place to Mrs. Tbummel; tbe other tbe deed in question by Mrs. Tbummel, conveying tbe Cook avenue lot, in which tbe place for tbe name of tbe grantee was left blank. Both deeds were acknowledged by the parties before a notary at tbe same time and place; tbe deed to tbe Forest Park place delivered to Mrs. Tbummel, and tbe deed to tbe Cook avenue lot delivered to tbe said Lee S. Holden. That Mrs. Tbummel, at tbe time she executed, acknowledged and delivered tbe deed in question to Lee S. Holden, knew that tbe place in tbe deed for tbe name of tbe grantee *683 was left blank, is not disputed, and in connection with these uncontroverted facts the evidence tended to prove and the court found that she delivered the deed to said Holden without condition, and with authority to him to fill in the name of such grantee as he might elect.

The evidence further tended to prove and the court, in substance so found, that afterward, in September, 1894, and before the deed was recorded, Holden handed it, with another deed in the same condition, to Pritchard, with the request that he fill in the blanks with the names of the grantees, at the same time giving him a memorandum of the two names to be filled in, as George L. Taylor for the one, and James A. Poster for the other. Pritchard immediately went to his desk, and filled in the names, but by mistake filled the blank in the deed in question with the name of Poster instead of Taylor as was intended; and upon his handing the deed back to Holden the mistake was at once discovered by him, and by his directions Pritchard immediately corrected the mistake by erasing Poster’s name and writing Taylor’s name in the blank in place of it. And thus it was that Taylor who then seems to have sustained a like relation to Lee S. Holden as that formerly held by Pritchard, as a depositary of Holden’s titles, became grantee in the deed, and subsequently defendant’s grantor of the premises, the incumbrances on which were thereafter paid off and discharged by the defendant, as found by the court.

Afterwards Mrs. Thummel, becoming dissatisfied with her bargain, upon hearing that the blank had been filled with Taylor’s name, executed the quitclaim deed to her son, the plaintiff, who accepted it with full knowledge of his mother’s conveyance to Taylor, as well as the consideration received therefor.

(1) After a careful examination of the record, we find the conclusions of facts by the court well sustained by the evidence, and if this were a plain judgment for the defend *684 ant in ejectment, it is evident upen the face of the statement that it ought tó be sustained, for it is well settled law in this State that “when a deed is executed and delivered in blank with the parol authority to fill the blank with the name of the grantee, the grantee whose name is afterward inserted takes a good title, and this is true though the blank be filled in the absence of the grantor.” [Bank v. Worthington, 145 Mo. 91 ; Field v. Stagg, 52 Mo. 534 ; Burnside v. Wayman, 49 Mo. 356 ; Otis v. Browning, 59 Mo. App. 326 .] Of course if the authority given by Mrs. Thummel to Lee S. Holden, had been to fill the blank with the name of any particular person, and he had inserted the name of any other person therein, the title would not have passed to such person as against Mrs. Thummel’s intended grantee. But as the authority was given to fill the blank with the name of any person he might select, and the person he selected was George L. Taylor, Taylor became her intended grantee, and the authority was not executed until his name was inserted in the blank.

The momentary insertion of the name of Foster by the scrivener, in the deed, by mistake, being without authority either from Mrs. Thummel or Lee S. Holden, conferred no title upon him, detracted nothing from the rights of Taylor, and the insertion of Taylor’s name after the erasure of Foster’s, for the first time made the instrument complete, as was intended by. the parties, and passed Mrs. Thummel’s title to Taylor, on delivery to him, and upon the issue of title the judgment was properly for the defendant. But it is not seen how the decree rendered in the case granting defendant the equitable relief prayed for can be sustained under the pleadings. There was no fact pertinent to the case, alleged in the answer that could not have been given in evidence under the general issue. ' The issue made by the facts pleaded was purely an issue at law upon the title; each party claiming title under a recorded deed from a common source, Mrs. *685 Thummel. Her deed to Taylor, under whom the defendant claimed, being the senior, conferred the better title. The plaintiff undertook to defeat it by attempting to show that Taylor was not in fact the grantee in that deed. In this he failed. This was the whole scope of the issue, and a simple judgment in his favor would have covered it. There was no necessity for invoking the power of a court of equity to protect his legal title, apparent upon the face of the deeds themselves and of the record thereof to be superior to that of the plaintiff. The fact that he had discharged the incumbrances subject to which he had taken his deed in accordance with his covenant therein so to do, gave him no equity against the plaintiff, and the allegation thereof in her answer, together with the allegation that plaintiff’s deed was made without consideration and for a fraudulent purpose, afforded no grounds for the interposition of those powers.

There was one fact disclosed by the evidence that might perhaps have made some show as a ground for equitable relief, and that was the declaration by Mrs. Thummel in' her deed to her son, the plaintiff, that her prior deed to .Taylor was void for the reason that she had never made or delivered any deed to him for the property. But as this fact was not mentioned or counted upon in the answer, it affords no support to the decree and we are not called upon to decide whether or not it would have afforded any ground for equitable relief, if it had been pleaded. It may be well, however, to remark, in passing, that as a rule a court of equity has no power to restrain a libel on title. [Flint v. Hutchinson Smoke Burner Co., 110 Mo. 492 .]

As the case stands the decree will have to be reversed, and the cause remanded to the circuit court with directions to enter up judgment for the defendant in ejectment.

All concur.