Alsop v. Swathel

7 Conn. 500 | Conn. | 1829

Hosmer, Ch. J.

1. It was first insisted, by the plaintiff, that the shares were bought by John Swathel, for his brother William, and paid for, by the income arising upon them. On the other hand, the defendants claimed, that they were not purchased for William, but with the intent of permitting him to receive the dividends for the sustenance of his family, during his life, and after this, of conveying them to the same family, for their support. The court charged the jury, that if they should find, that the shares were purchased for William, with the view of their being his property, their verdict myst be for the plaintiff. In reference to the plaintiff, it is too clear to be. made a question, that the charge was unexceptionable. It does not appear, that the shares were purchased, by a co-operation with William; or that they were ever paid for, or agreed to be paid for, by him. The case was placed on the most favourable ground for the plaintiff. If the purchase was intended for William’s benefit, or in other words, was made with the view of the shares becoming his, abstracted from every other enquiry, the jury were to find a verdict for the plaintiff. Under a charge, on the plaintiff’s part, free from all objection, the verdict proves, that the purchase was not made for William R. Swathel, but by John Swathel, for the benefit of William’s family.

2. The plaintiff next claimed, that the shares were conveyed to William, by the bill of sale deposited with Miss Spelman. This instrument had never been actually delivered to the intestate, but was put into the hands of the lady last named, as the plaintiff admitted, “ to keep,” and as the defendants insisted, what from the fact conceded is clearly implied, to hold subject to the order of John Swathel. The jury were charged, that every instrument takes effect from its delivery ; and that such delivery cannot be presumed against the consent of the grant- or. These principles have often been clearly established, and are incontrovertible.

A deed is a writing sealed and delivered ; (Co. Lilt, 171. b. 356.) and although no particular form of delivery is requisite, it is necessary, that by some expression or act, the obligor indicate his intention to put the deed into the possession of the other party. Co. Litt. 36. Jackson d. McCrea v. Dunlap, 1 Johns. Ca. 114. Goodrich v. Walker, 1 Johns. Ca. 250. Jackson d. Eames v. Phillips, 12 Johns. Rep. 418. Jackson d. Wadsworth v. Wendell, 12 Johns. Rep. 355. Ward’s exrs. v. Ward, 2 Hayw. 226. And so far is this principle carried, that even a court of equity will not interfere to give effect to a deed not delivered, but considers it as being inchoate or imperfect. 12 Ves. jun. 39. 1 Madd. Chan. 176. There is no ground for the suggestion, that the deed was constructively delivered. Had it been deposited with Miss Spelman for the use of the grantee, there would have been a delivery of it in construction of law. Belden & al. v. Carter, A Day, 66. 2 Stark. Ev. 477. n. (1). But the terms of the deposite exclude this idea ; the direction being to keep, or to hold the deed subject to the order of John Swathel.

3. It was next contended by the plaintiff, that the dividends were paid -to William, by authority of John Swathel, in order that he might obtain credit; and that such transaction was fraudulent in respect of creditors. What effect a fraud of this nature would have on the property in question, it is unnecessary to decide. Suffice it to observe, that the charge on this point was in the plaintiff’s favour.

By the closing expression of the judge’s charge, the jury are instructed as to the grounds on which their verdict must be given for the defendants. They were informed, that if Miss Spelman was directed not to deliver the bill of sale to William, but was only a trustee, to deal out the income to him during his life, and afterwards to his family ; and if he_ had never paid for the shares ; on the concurrence of these facts, the defendants were entitled to their verdict. To this part of the charge no exception has been, or could be, made.

4. It was lastly insisted, that the judge did not fully submit the case to the jury, particularly on the question of fraud. For this suggestion there exists no foundation. The jury were distinctly charged on every question raised at the trial. If the fact were otherwise, it should have been stated. No specific charge was requested, by either party. “ It is sufficient,” says Story, J. “ that the court has given no erroneous directions. If either party deems any point presented by the evidence to be omitted in the charge, it is competent for such party to require an opinion from the court upon that point. If he does not, it is a waiver of it. The court cannot be presumed to do more, in ordinary cases, than to express its opinions upon the questions, which the parties themselves have raised at the trial.” Pennock & al. v. Dialogue, 2 Pet. U. S. Rep. 15, 16.

The other Judges were of the same opinion, except Dag-gett, J., who gave no opinion, having been of counsel in the cause.

New trial not to be granted.