Austin v. Austin

105 Wis. 680 | Wis. | 1900

“WiNslow, J.

There is really but one serious question in this case, and that is whether the finding of the trial court that there was no delivery of the deed in question to the plaintiff is so clearly against the weight of the evidence that it should be set aside by this court. Examination of the evidence convinces us that this question must be answered in the negative. '

There was no direct evidence of the delivery. The deed, with signature removed, was produced on the trial by the defendants, so there was no presumption of delivery arising from possession. It is true that the plaintiff testified that she had possession of it for a short time on the day of its date, but this possession is not shown to have been in pursuance of a delivery, and may have been merely for examination, or may have been obtained without the grantor’s knowledge. It is true also that there are some items of evidence tending to show that Edward A. Austin stated to ■others that he had deeded the property to his wife. It may well be that from all of this evidence the trial court might have been justified in finding that there was an actual de-lively, and that this court could not have reversed such finding; but, on the other hand, there is much evidence in the case tending to convince the mind that no delivery ever took place, and that the deed, from its inception up to the time of Edward A. Austin’s death, remained, and was intended to remain, under the control of Edward or his brother, and we cannot say that the court erred in giving credit to. this testimony, and finding that there never was a delivery in fact. The deed was a purely voluntary one, made by a man with four children of his own, by which, if the deed was effective, almost his entire property was given to his second wife. It was accompanied with a will which gave to the wife’s son an equal share of his property with his own children. It was executed when the domestic relations were strained almost to breaking, and all the circumstances seem to lend color to the belief, which the trial court evidently entertained, that neither paper was ever intended to be effective, but simply intended to heal or palliate domestic difficulties by an apparent act of remarkable generosity.

It is true that a mental reservation on the part of the grantor cannot destroy the effect of an otherwise valid delivery. Bogie v. Bogie, 35 Wis. 659. But where actual delivery is not proven by direct testimony or admitted, and the question whether such actual delivery ever took place is to be determined by inferences from surrounding facts and circumstances, the intent of the parties may materially assist in determining the proper inference to be drawn. -While the scheme here shown to deceive the plaintiff was not a creditable one, still it must be remembered that the supposed transfer was a pure gift, and that there are no elements of legal fraud, because nothing was advanced or done upon the strength of it. The plaintiff must recover, if at all, by showing the fact of delivery, not by showing deception in which there was no legal fraud.

By the Coivrt.— Judgment affirmed.