Atwood v. Atwood

15 Wash. 285 | Wash. | 1896

The opinion of the court was delivered by

Hoyt, C. J.

The fact upon which the rights of the parties in this action depends is as to whether or not a certain deed found among the papers of the grantor after his death had been so delivered in his life time that it became operative, and conveyed the title to the land therein described to the grantees therein named.

The cause was tried before a referee who made findings of fact upon which he founded a conclusion of law to the effect that the deed had been so delivered. Exceptions having been taken to the findings of the referee, the superior court set aside such findings and made new findings of fact, and thereon found as a conclusion of law that the deed had not been delivered so as to become operative.

A careful examination of all the evidence introduced upon the trial satisfies us that the findings made by the superior court were warranted by such evidence, and in our opinion but one conclusion of law could be drawn therefrom, and that was the one which the superior court drew when it found that the deed had not been delivered. Not only are we satisfied that the findings by the superior court fully support its conclusion as to the law, but in our opinion the findings of fact made by the referee failed to support his conclusion of law drawn therefrom, and were such that the proper conclusion would have been that the deed had not been delivered.

In coming to these conclusions we have not lost sight of the able argument and large array of authorities contained in the brief of appellant, to the effect that the delivery of a deed does not necessarily require any formal act on the part of the grantor; that it is often a question of intention; that a deed may become operative while the manual possession is retained by the grantor. But in such cases, before the court can find a delivery, the intention to consummate the transaction so as to fully vest the title in the grantee must be clearly shown, and neither the findings of fact by the referee nor by the superior court, nor the evidence in the case, satisfies us that the grantor in the deed under consideration ever did anything with the intention that by doing it he had so delivered the deed as to make it presently operative. That which can be gathered from the evidence construed most strongly in favor of the plaintiff, is that the grantor made the deed and that he intended that at some time the grantees therein named should become the owners of the land therein described; but there is nothing which even tends to show that he ever did anything in connection with the deed or said anything in reference thereto which clearly showed his intention that the title should pass from himself to his children during his life time. Nor was there anything which tended to show that the deed had been delivered to any person in escrow to take effect after the death of the grantor. Such being the state of the evidence, no case has been cited by the plaintiff which would justify us in finding that the deed had been delivered during the life time of the grantor.

The judgment and decree will be affirmed.

Anders, Dunbar, Scott and Gordon, JJ., concur.