
    No. 20,455.
    Maude Dell Small, Appellant, v. A. M. Small et al., Appellees.
    
    syllabus by the court.
    
      Action — To Set Aside Deeds — Demurrer to Evidence. The plaintiff’s evidence considered, and held that a demurrer to it was properly sustained.
    Appeal from Doniphan district court; William A. Jackson, judge pro tem.
    
    Opinion filed December 9, 1916.
    Affirmed.
    
      C. W. Reeder, of Troy, and Alcid Bowers, of Saint Joseph, Mo., for the appellant.
    
      S. M. Brewster, of Topeka, A. L. Perry, and J. J. Baker, both of Troy, for the appellees.
   The opinion of the court was delivered by

Burch, J.:

The action was one to set aside three deeds of real estate. A demurrer was sustained to the plaintiff’s evidence and she appeals.

On March 9, 1904, Bowen Small, the owner, executed and acknowledged a deed of the property, which .is a farm of 160 acres; to his children and grandchildren. On September 25, 1910, he married the plaintiff." On December 2, 1910, he died intestate. At the time of his death he lived with his wife in a home which he owned in the city of Severance. After his death his estate was probated. His widow remarried, but was divorced from her last husband when the present action was commenced. In September, 1911, at the solicitation of an agent of the defendants, the plaintiff executed and delivered a deed quitclaiming her interest in the farm to the grantees in the Bowen Small deed. A second deed of the same tenor was executed and delivered by the plaintiff to correct a verbal inaccuracy in the first one. These deeds were promptly recorded. The deed of Bowen Small was not recorded until after his death. The action was brought in January, 1915.

The petition alleged that the deed of Bowen Small was void because it had not been delivered by the grantor. The plaintiff testified that Mace Small, a son of Bowen Small, had charge of the farm, farmed it, and paid rent to his father. She said that Mace Small told her, after his father’s death, that he was giving his brother, Beattie Small, the rents. Bowen Small kept some stock on the farm and would go there two> or three times a week. Sometimes the plaintiff would go with him. A week or so after Bowen Small’s death, Mace Small and Beattie Small came to the plaintiff’s house to look for some papers they said they had to have. They did not say what papers. Twice afterwards they came on the same mission, and on one occasion said a paper was lacking which they could not find. They got papers each time, but the plaintiff did not know what the papers were. The deed in question was filed for record on December 8, 1910. It recited that the grantor was a widower, that it was made in consideration .of one dollar and love and affection, and it was in form a warranty .deed.

The foregoing evidence did no more than furnish a basis for speculation as to whether or not the deed was among the various papers taken from the decedent’s home after his death. The missing paper may very well have been one necessary to the probate proceedings. Mace Small and Beattie Small were not called to testify on the Subject. The register of deeds was not called to identify the person who filed the deed for record, and no attempt was made to trace possession of the instrument backward from presentation for. registration. The notary public who took the acknowledgment was not called to tell what became of the deed after it passed under his seal. The evidence fails to' give any account whatever of the instrument from the date of execution to the date of filing.

The circumstantial evidence touching the subject of proprietorship of the farm did no more than furnish a basis for conjecture. The belief is quite common that a deed delivered before death, but accompanied by some arrangement reserving beneficial use until death, is a better way of disposing of property than by will. The grantees of Bowen Small were his children and grandchildren, and the circumstances that the one who occupied and farmed the place paid rent, and permitted stock to be kept there, were insufficient to warrant the court in making a positive finding of non-delivery. There is no presumption of fraud or wrong doing on the part of Mace Small, Beattie Small, or any one else, and the burden rested on the plaintiff to furnish substantial evidence to establish her charge that the deed had not been-delivered in her husband’s lifetime.

The petition alleged that Bowen Small married the plaintiff after making the deed and that she had no knowledge of the fact that it had been made. The allegation does not amount to a charge of fraud upon the plaintiff’s marital rights, and if it did, there was no evidence to sustain it. There is no evidence that Bowen. Small contemplated marriage or even knew the plaintiff when the deed was made. He discussed his financial resources with the plaintiff and enumerated some of them, but did not include the farm among them. He told her he had money in the bank and money loaned out to the children; that he was not wealthy, but that he had plenty to keep her as long as she lived. She said she knew he had a home, and that she ' had one. When presséd for an answer, she would not say she ever believed her husbafid owned the farm. Her strongest statement was, “I just thought it belonged to the Smalls.”

Since the plaintiff failed to show sufficient cause for cancellation of the deed made before her marriage with Bowen Small, it is not necessary to discuss the evidence relating to the validity of the deeds obtained from the plaintiff to remove whatever shadow rested on the defendant’s title because the deed from Bowen Small was not recorded until after his death.

The judgment of the district court is affirmed.  