Burchett v. Fink , 1909 Mo. App. LEXIS 500 ( 1909 )

NINON, P. J.

(after stating the facts.) — It is apparent from an inspection of the evidence in this case that the common source of title to the disputed notes was in Juda Fleming, deceased, and that at her death, the notes were found with her private papers in her private box in the Bank of Humansville; that during the time the inventory was being taken, either the administrator or some other person turned the two notes in dispute, numbered one and three, over to William B. Burchett, who transferred and delivered the same to W. W. Grimes, appellant, and that he received the notes with full knowledge of Burchett’s title and how he came in possession, of them.

It is thus apparent that Juda Fleming never parted with the possession of these notes; and although she indorsed them to her son, William B. Burchett, and announced her intention to give the same to “Will” — meaning William B. Burchett — as a matter of fact, she retained full control of her notes to the day of her death. There was no evidence of any delivery or of any attempt during her lifetime to deliver these notes to her son, William B. Burchett; nothing but her declared intention to do so at some future time.

The case therefore travels along a well beaten path, and finds its real solution by the application of well established legal principles. A gift inter vivos passes no title — notwithstanding the assignment on the back of these notes, and notwithstanding any intention which the owner may have entertained of delivering such notes at some future time to her son — the fact being that no delivery was ever actually made, during her lifetime. Under such circumstances, no title passed to the appellant Grimes from William B. Burchett. A gift is a contract executed, and as the act 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 the want of a consideration. [Lowrey v. Danforth, 95 Mo. App. l. c. 451; Doering v. Kenamore, 86 Mo. 588; Nasse v. Thoman, 39 Mo. App. 178; Gartside v. Pahlman, 45 Mo. App. 160; Thomas v. Thomas, 107 Mo. 459; In re Estate of Soulard, 141 Mo. 642.]

In this case, it also appeared that the administrator of the estate of Juda Fleming or some other party delivered the notes to William B. Burchett after Juda Fleming’s death. But even the administrator under such circumstances and in this way could not transfer the property of decedent’s estate, of which he had become trustee, although Juda Fleming had , in her lifetime duly indorsed the notes to William B. Burchett and intended to give them to him. The title to the notes after her death passed to her administrator and could only be transferred by operation of law as pointed out by statute, which was not done in this case. [Cowgill v. Lenville, 20 Mo. App. l. c. 145; Marshall v. Meyers, 96 Mo. App. l. c. 648; Chandler v. Stevenson, 68 Mo. 450; Stagg v. Lumenfelser, 59 Mo. 336; Scudder v. Ames, 89 Mo. l. c. 520.]

The appellant, having purchased with full knowledge of the title to the notes, the rights of an innocent purchaser are not presented to us for consideration in this case. It is apparent that the claims of the appellant are without legal merit. The judgment of the trial court is affirmed.

Gray, J., concurs; Gox, J., having presided as judge in the trial court, did not sit.