Annis v. Wilson, 15 Colo. 236

Annis v. Wilson

15 Colo. 236 | Colo. | 1890

Reed, C.

It is alleged in the complaint “■ that plaintiff ■executed and delivered to said Eli Annis as aforesaid, for the sole purpose of providing his said daughter, Erma E. *241Annis, with some property in case she should arrive at the age of eighteen, this said deed, and intended by said deed that the said Eli Annis should hold the title to said real estate for the purpose of conveying the same to the said Erma E. Annis, in case she should arrive at the age of eighteen years, and in case she should not live to that age that he should reconvey the same to plaintiff.” Such may have been appellant’s intention. If it was, his intention evidently was defeated by the execution and delivery of the deed. Py the deed in question, the title did not, as supposed, pass to Eli Annis in trust, but passed by the conveyance directly to the child, and the title vested by the execution and delivery of the deed for record. There is no question of execution and delivery. The execution is alleged in the complaint, and also that the deed was delivered to Eli Annis for the purpose of having it recorded.

In determining the sufficiency of the complaint, the first inquiry would seem to be whether a father can, by deed direct, make a legal conveyance to an infant child so as to vest the title without creating a trust or the intervention of a trustee. That such a conveyance can be so made is well settled by numerous authorities. Co. Litt. 2b, 3b. In 3 Washb. Real Prop. (4th ed.) 267, it is said: “The capacity to take as grantee is much less restricted than that required to' make a grant. Persons non eonvpotes mentis, married women, infants, corporations and bodies politic may take as grantees.” See, also, Bank v. Bellis, 10 Cush. 278; Masterson v. Cheek, 23 Ill. 75.

The conveyance to the infant is full, clear and unequivocal. The intention of the grantor to divest himself of all interest in the property is manifest. There was no reservation, no language from which a resulting trust for his own benefit could be inferred in the event of the death of either the infant or Eli Annis. The child took the full and complete legal title, the grandfather took no title. What •he took under the deed was the beneficial use of the property for the payment of taxes until the child should be *242eighteen years old. The allegation in the complaint is directly contradictory of the plain legal effect of the deed. In order to recover under the complaint, plaintiff would have to annul and abrogate his deliberate act in making the conveyance, and having the same placed of record, on the allegation that he did not intend to do what he deliberately did do. Deéds absolute on their face, and of record for years, cannot be overthrown on the allegation of the grantor, in a suit to recover the property, that he did not intend to do what he unquestionably did do. There are many cases in the books where the grantor has been allowed to show by parol his intention in reserving a resulting trust to himself, but an examination of them will show that, in every instance, parol evidence was limited to the inquiry of the completion of the conveyance by the delivery or record of the deed to render it operative as a conveyance, and the grantor has been allowed to show nondelivery of the deed, or an intention to retain its possession to defeat its operation; but I can find no case where the grantor was allowed to assert by parol an intention prior to or at the time of the conveyance contradicting his intentions as expressed in the deed and abrogating it. Several cases have arisen where the father purchased and paid for land, and took the title in the name of the children, and the question was whether there was a resulting trust to the father, or whether it was an advancement to the children, and the grantor was made to show by clear and satisfactory evidence that it was intended as a trust and not intended as an advancement. But where the father having the title in himself conveys directly to a child, no case can be found where he was allowed by parol to show that he intended a resulting trust to himself.

In Souverbye v. Arden, 1 Johns. Ch. 240, Chancellor Kent said: “ A voluntary settlement, fairly made, is always binding in equity upon the grantor, unless there be clear and decisive proof that he never parted nor intended to part with the possession of the deed; and even if he retains it *243the weight of authority is decidedly in favor of its validity, unless there be other circumstances besides the mere fact of his retaining it to show that it was not intended to be absolute.”

In Ceoil v. Beaver, 28 Iowa, 246, Dillon, C. J., said: “ Where the deed to a child is absolute in form and beneficial in effect, and the grantor and father voluntarily causes the same to be recorded, this is in law a sufficient delivery to the infant, and the title to the lands conveyed will pass thereby.”

See, also, Robinson v. Gould, 26 Iowa, 92; Mitchell v. Ryan, 3 Ohio St. 377; Masterson v. Cheek, 23 Ill. 72.

In Rivard v. Walker, 39 Ill. 413, the grantor conveyed his property to his infant children to prevent its being squandered by the wife, and delivered the deed without reservation for record. Afterwards the wife procured a divorce, and the grantor filed a bill praying that the deed might be set aside, and alleging that he had never delivered it. The court held that, in the case of infant children, a filing for record was a delivery, and denied the relief asked, and said: “ By directing the deed to be recorded, and by its record, he gave to the public the most solemn assurances in his power that he had transferred his title to his children, and he cannot be permitted to resume it at pleasure because he may have afterwards been inclined to regret the act.”

It follows that, under the allegations contained in the-complaint, the court could not grant the relief asked in this case,- — ■ viz., that it be adjudged and decreed “ that plaintiff is the owner in fee-simple of the real property hereinbefore described; second, that the said claim of the defendant, as administratrix of the estate of Erma E. Annis, deceased, is without foundation or merit; third, that the said defendant, as said administratrix, be restrained and enjoined from any proceeding to subject the said real property to the payment of the debts of the said.Erma E. Annis, deceased, and from in any way interfering with plaintiff’s title therein.” It is apparent that the relief sought in the premises is pred*244icated upon, the theory that the plaintiff, by the operation of a resulting trust and the death of the child, is reinvested with the title to the property. That, in my view of the case, not being the fact, and the legal title having passed upon the death of the child to her heirs, it is unnecessary to consider what, if any, relief plaintiff might be entitled to in a proper case, growing out of the fact of the reconveyance to him by quitclaim deed of whatever beneficial interest or use Eli Annis had by virtue of the former conveyance. What interest he took, if any, by such conveyance, I do not attempt to determine. That he did not take the legal title in fee is olear; hence, the complaint proceeding entirely upon that supposition, the demurrer was properly sustained. Without being understood as deciding that plaintiff is not entitled to some relief in the premises on proper proceedings, as heirs of the child or grantee of Eli Annis, I am of the opinion that the judgment of the court below should he affirmed.

Bissell, C., concurs.

Per Curiam.

Eor the reasons stated in the foregoing opinion the judgment of the court below is affirmed.

Affirmed.

Mr. Justice Elliott did not participate in the foregoing decision, having tried the cause below.