The solution of two questions is necessary to the proper determination of this case. One of these is the delivery of the deeds, and the other is their character. It has been tersely said by a great jurist that "delivery is the life of a deed." Without this essential "it is a mere dead scroll and hath no life in it." [Chambers v. Chambers, 227 Mo. l.c. 282.]
Whether a deed has been delivered or not is a mixed question of law and fact. [McKinney v. Hawkins, 215 S.W. (Mo.) 250.] A cogent factor is the intention of the parties. While a presumption of delivery arises from the execution of a deed, it may be rebutted by facts showing that such was not the intention of the grantor. There are cases in which it is held that if the grantor, when executing it, intends it as a delivery and this is known and understood by the grantee, and the parties treat the estate as having thereby actually passed, it will effect a valid transfer of the property, although the possession be left in the grantor. This rule, however, is applied under a state of facts, as disclosed in the cases cited in *Page 97 support of same, different from those at bar. [Harvey v. Long, 260 Mo. l.c. 386; Tobin v. Bass, 85 Mo. l.c. 658; Cecil v. Beaver, 28 Iowa 241; Gould v. Day, 94 U.S. 405.] Furthermore, in the discussion of this question it is held here and in other jurisdictions that delivery may be shown by acts without words, or by words without acts. [Miles v. Robertson, 258 Mo. 717; Townsend v. Schaden, 275 Mo. l.c. 242; 8 R.C.L., par. 50, p. 980; Ward v. Small, 90 Ky. 198; Shoptaw v. Ridgway, 60 S.W. (Ky.) 723; Martin v. Bates, 50 S.W. (Ky.) 38; Hughes v. Easten, 4 J.J. Marsh, 573; Jackson v. Phipps, 12 Johns. 421.] It will be seen from these cases that the question of delivery must be determined from the facts in the particular case, a general rule applicable alike to all cases being impossible.
There are certain essentials, however, to such a delivery as will effectuate a transfer of title, which are general in their terms and alike applicable to all cases, One of these essentials is the presence of unequivocal facts showing that the grantor in executing the deed parted with his dominion over the property with the intent that the title thereto should pass to the grantee. [Wren v. Sturgeon, 184 S.W. (Mo.) 1036, and cases cited; McKinney v. Hawkins, 215 S.W. (Mo.) 250; Ray v. Walker, 240 S.W. (Mo.) l.c. 196.]
An effective delivery may be made by placing the deed in the hands of a third person to be delivered upon the grantor's death. This rule is applicable, however, only when the instructions to the depositary as to the delivery are unconditional in their nature, leaving no room for controversy as to the grantor's intentions. [Peterman v. Crowley, 226 S.W. (Mo.) 944; Crites v. Crites, 225 S.W. (Mo.) 990; Whitely v. Babcock, 202 S.W. (Mo.) 1091.]
A statement of the relevant facts may, without more, enable it to be determined whether there was such a delivery of the deeds as to meet the requirements of the general rules above referred to. The deeds were deposited *Page 98 by the grantor with the president of a bank in Carthage named J.E. Lang. His business relations with the grantor, confidential in character, were varied in their extent, and may not improperly be classified as those of an agent coupled with that of an adviser in the conduct of her business. We quote in narrative form, omitting the interrogatories, his testimony defining his relations and stating the circumstances under which he acquired the possession of the deeds. His testimony, as nearly in his own words as possible, is as follows:
"Mrs. McCune came in the first place and stated that she came to me as a friend of her husband's and a Mason. Then she stated that she wanted to make a donation to the hospital, the Brooks Hospital, because her son and Dr. Brooks were great friends. I told her that Mr. McReynolds was taking a great interest in the hospital, and he was the man for her to see in regard to it. So we called in Mr. McReynolds and this matter was taken up with him. Mrs. McCune talked to me at different times as to what would occur after she died. She was fearful of her will being broken and she wanted to know if there was not some way it could be fixed, and I told her she could make a deed. She objected to making a deed and recording because that would make it public. She was very secretive in all her transactions. She didn't want the left hand to know what the right hand was doing. I told her I would talk to Mr. McReynolds and see if it could be done. Mr. McReynolds told me at that time that the deeds could be made and delivered. I told her that Mr. McReynolds had said that she could make a deed and deliver it and it could be held until she died. I then arranged a meeting between her and Mr. McReynolds. After that I knew nothing more until this package was delivered to me to hold. I think it was Mr. McReynolds who delivered it. It was sealed at that time. Since that time it has been at the bank among my papers. The will and both the codicils were in the bank in my custody, and had been ever since they were drawn, except *Page 99 that Mr. Gibbs had them at one time. I had control of the will and codicils several years. I can't say exactly how long. Mrs. McCune kept a box in my bank. I had access to the box. I have transacted a great deal of Mrs. McCune's business for several years. Not all of it. I wrote small checks on her account, settling up her little bills. Any large checks, she wrote herself. I looked after her lands and collected her interest or rents and leased her farms, and anything she wanted me to do. I was her general agent in looking after and transacting all of her business. We were good friends. I paid her taxes and looked after her insurance. I have the originals of the notices Mrs. McCune gave me in October, 1919, relative to her papers, but I haven't them here. They are in my possession. The first one is dated October 18, 1919; the second, October 27, 1919. After these notices [which requested Lang to turn over the papers to her], she came to the bank and stopped out in front in a closed car, and I shook hands with her and read one of these notices to her and wanted to know if that was her request and she said it was. And afterwards I turned over the papers to her, except these four deeds. I took the position that other parties were interested in them and I could not turn them over without their consent. My position was that I was willing to turn the deeds over after the controversy was settled. I think I told you at the time [addressing counsel] when it was settled I was willing to turn them over. I looked after the insurance of the houses on the farms, described in the deeds, and kept this up after the execution of the deeds as before."
We have shown that intention is the mainspring determinative of the character of the grantor's action in depositing the deeds with her agent, Mr. Lang. That intention, when correctly determined, must comprise the entire contemplated operations of the act — those for the sake of which as well as those in spite of which the act was done. Or more briefly, if correctly determined from the proof, it must comprehend the entire purpose and *Page 100 design of the act. That it was the intention of the grantor to bequeath the residue of her real property to the city of Carthage for the erection and maintenance of a hospital subsequent to the satisfaction of other bequests named, there need be no controversy; but the nature of the transfer of the lands, described in the deeds, is not to be determined from this fact. The salient sources from which light may properly be derived in the solution of this question are in the relations sustained by J.E. Lang to the grantor; especially in the dominion exercised under her direction by him over the land described in the deeds after their execution and deposit with him, evidenced by his management and care of the property, including the making of improvements, the rental of the land and the collection and accounting to her of the rents, his payment for her of the taxes and the insurance. In short, his recognition of the fact that despite the deeds, her dominion was complete and that it was intended by her to continue during her life. Although but incidental, Mr. Lang's testimony (despite his conduct contradictory of same in refusing to return the deeds to her) furnishes further proof of the manner in which he then construed her act in that her dominion over the property continued despite the deeds. This dominion is out of harmony with a purpose to pass a title in praesenti. Complete control, in the absence of anything to the contrary, is an excellent indicia of ownership. Thus it must have been regarded by her when her entire conduct is taken into consideration. Furthermore, other material facts furnished by Mr. Lang's testimony give force to the correctness of this conclusion. Being her general and confidential agent, in him was reposed the custody and care of all of her papers. There is no evidence that these deeds were not received, held and kept by him in the same manner and for the same purpose as her other papers. Some oral evidence, much of which was wholly inadmissibel, was introduced in an attempt to render complete the grantor's transfer of the property. Whatever probative force may *Page 101 have been given to this testimony by the trial court to sustain the question of the delivery of these deeds, it is dissipated by a review of Mr. Lang's entire testimony and her conduct in relation to the matter. If it had been her purpose to pass a present title to the lands described in the deeds, her desire to keep their transfer secret not only as to the execution of the deeds themselves, but as to their recording, can find no resting place in the reasoning mind. However, it being her purpose to ultimately make these lands a part of her charitable bequest and believing as she had probably been advised, that the operation of the deeds in futuro would effect that end, she would not desire that the transaction be given publicity, thus avoiding any question as to her domination and enjoyment of the fruits of the lands during her life. That she entertained this view of the transaction and did not contemplate a present delivery is further attested by her demanding the return to her of the deeds — a course consonant only with a future but not a present purpose of transfer. It will not suffice to say that this conduct may have been animated by caprice and a desire to revoke the bequest. There is no evidence to support this conclusion. On the contrary it is clearly shown that so far as her intention at the time was concerned it was to convey the lands for the purpose designated and that Mr. Lang, her agent and representative, was to retain them for safe keeping as he did her other papers until her demise. That she subsequently changed her mind and determined to make a different disposition of the lands is in harmony with the conclusion that a present transfer was not contemplated by her at the time of the execution and deposit of the deeds. Possessed of more than ordinary intelligence, her experience in the management of her property under the advice of her agent, Mr. Lang, authorizes an inference stronger than a presumption that she knew full well the effect of the execution of a deed to real property and the delivery of same to the grantee, and that when so delivered she would be powerless to recall the deeds and could not have demanded their return. *Page 102
In passing, it may be pertinently remarked that the lay mind of the adult of average intelligence, although not panoplied with the experience possessed by Mrs. McCune, is familiar with the fact that the making of a deed and its delivery to the person to whom it is made will effect a present complete transfer of title in the absence of any limitation therein.
Mr. Lang's testimony as to the manner in which he held the deeds is corroborated by the endorsement made on the package containing them, to the effect that they were delivered to him for the purpose of safely keeping them and upon her demise they were to be delivered to the grantee named therein. In the face of this endorsement, not to be otherwise construed than as an express direction to Mr. Lang so long as he held the deeds, there can exist in the reasoning mind no ground for controversy nor for variant conclusions. The purpose of the deposit was safekeeping; the time of the delivery was the grantor's demise.
Precedents are not lacking to support not only the reasoning but the conclusion reached in this behalf.
We held in Coles v. Belford, 232 S.W. (Mo.) 728, that where a grantor had directed one grantee to put the deed away and keep it and whenever anything happened or when the grantor died to have it recorded, indicated that it was the grantor's intention that the deed was not to become operative until her death. Especially was this held to be true when other evidence disclosed that thereafter she retained the management and control of the property and exercised other acts in regard thereto indicative of ownership. Under such a state of facts it was held that there was no delivery at the time within the contemplation of the law.
In Huey v. Huey, 65 Mo. 689, it was held that the mere lodgment of a deed in a place to which the grantee had access and from which he could without hindrance transfer it to his own possession, which the intent on the part of the grantor that the grantee might, after his *Page 103 death, take it and have it recorded and then become the owner of the land conveyed, did not constitute a delivery of the deed. A like state of facts was held to show non-delivery in Scott v. Scott, 95 Mo. 300.
In Terry v. Glover, 235 Mo. 544, it is held that it is essential to a valid delivery that the grantor part with the possession of the deed without reservation and with the intention evidenced by her acts in regard to the property that it was to take effect at the time and thus operate as a transfer of the title.
In Whitely v. Babcock, 202 S.W. (Mo.) 1091, it is held that deeds delivered to a trustee with a collateral agreement that they were not to deliver them to the beneficiaries or be recorded until after the grantor's death were void in that it was not intended that they were to pass title during the grantor's life.
The case at bar may readily be distinguished from Crites v. Crites, 225 S.W. (Mo.) 990, and cases there cited, which hold that a deed placed in the hands of a third person with unconditional instructions to deliver the same to the grantee upon the grantor's death, in that at bar there were no unconditional instructions to deliver until the grantor's death, and every act of the grantor was indicative of a purpose of continued ownership and dominion until that time arrived.
Much that we have said in regard to the essentials to a delivery of a deed is applicable in determining its character. Intention, as in a delivery, is of prime importance. This may be arrived at not only from the language employed in the instrument, but from all of the attending circumstances. Deducing a conclusion from diverse authorities, where, as here, it appears that it was the intention of the grantor from her continued possession and enjoyment of the property after the conveyance that the title was to remain in her until her death and then pass to the grantee, the instrument will be held to be testamentary and hence incapable of consummation as a deed. This conclusion is founded upon the distinctive *Page 104 difference between deeds and wills, in that an instrument to have the effect of a deed must convey a present interest, while to possess the characteristics of a will it can become effective only upon the death of the maker. Stated in different words, but to the same effect, is the ruling of this court in O'Day v. Meadows, 194 Mo. 588, that a mark of distinction between wills and deeds is that in the former the grantor may at any time prior to his death revoke the provisions, while in the latter a vested estate is created which is irrevocable. To a like effect, we held in Givens v. Ott, 222 Mo. 395, that an instrument to be good as a deed must convey a present interest, and where it is to take effect and become operative alone on the grantor's death it is testamentary.
So far, however, as the determination of the matter at issue is concerned, the question of the character of the instruments, as disclosed by their terms, is immaterial. They were never delivered and hence they passed no title, present or prospective. This being true, it is not necessary to discuss the question as to whether the will, the codicils and the deeds should be considered together and construed as one instrument in determining the character of the deeds.
I was of the opinion when this case was orally argued that there had never been a delivery of these deeds, and a subsequent review of the record has tended to strengthen that conclusion. Entertaining this view, this case should be reversed with directions to the trial court to enter a judgment in favor of the appellant.