Zumwalt v. Forbis , 349 Mo. 752 ( 1942 )

ON MOTION FOR REHEARING. Appellants contend in their motion for rehearing that the general rule placing the burden of proving the nondelivery of a deed upon the party who seeks to set it aside for that reason, although stated by encyclopedias of law, is not the rule in this State. Such a rule seemed to us to be so sound as to require no further citation. This State follows the rule. In McFarland v. Brown (Mo.), 193 S.W. 800, this Court declared: "It is claimed by respondents [plaintiffs] that there was no evidence of delivery of the deed. The burden was on plaintiffs to make out their case and prove nondelivery if they relied upon that issue. In any event the possession of the deed by the defendant was sufficient to raise the prima facie presumption of delivery. [Scott v. Scott, 95 Mo. 300, 8 S.W. 161; Pitts v. Sheriff, 108 Mo. 110, 18 S.W. 1071.]"

Appellants cite for the first time Tyler v. Hall, 106 Mo. 313, 17 S.W. 319. That case is not apposite because after the death of the grantor "the deed in question was found by the administrator, in a desk kept by deceased, and under his control, among other papers belonging to him at his death. It was afterwards given into the possession of defendant by the administrator." Under these facts the court held that the burden of proving delivery was upon the person claiming under the deed. But the court further said: "If the deed, properly executed, had, on the death of the grantor, been in the possession of the grantee, a presumption of delivery would have arisen, which could only have been overcome by satisfactory evidence." This latter situation is the one we have now before us.

[7] Appellants renew their argument that there is a presumption the deed was not delivered arising from the fact it was recorded after the death of the grantor.

In this connection they rely on Southern v. Southern (Mo.), 52 S.W.2d 868. It seems to us that case supports a view contrary to theirs. It was a suit to set aside a deed which was placed of record after the grantor's death. This the court refused to do. The court said: "Recording is not essential in transferring title as between the parties themselves, but may have strong evidentiary value on the question of delivery and on the intent of the grantor. The delivery of a deed to a third person with instructions or intent to have the same withheld from record until after the death of the grantor and then recorded, if done with intent to pass title at once to the grantee, is a valid delivery." Therefore it must follow, as we said in our opinion, that the recording a deed after the grantor's death "is not of itself sufficient to show nondelivery." That fact alone can not overcome the presumption of delivery arising from possession of the deed. Furthermore we set out in the opinion positive [578] evidence of actual delivery of the deed in grantor's lifetime which the chancellor chose to believe.

Appellants also cite Coles v. Bedford, 289 Mo. 97,232 S.W. 728, but that case is distinguishable on the facts.

Other points raised by appellants have already been ruled in the opinion. Further consideration shows us no reason to change those rulings.

The motion for rehearing is overruled. All concur.