192 Mich. 584 | Mich. | 1916
(after stating the facts). It seems that Edwin P. Barras, the father, wrote various letters regarding the land in question, after he had signed and acknowledged the deed to his daughter, the defendant, and after its alleged delivery. In these letters he spoke of the land as his own, and gave directions as to its management. • It is unnecessary to determine in this case whether these letters would, or would not, have been competent evidence if they had been written without defendant’s knowledge. It was fairly shown that she did have a general knowledge of her father’s correspondence about the land, and the letters were, in
Nor was there anything improper in permitting Mrs. Barras to give in evidence the statements made by her husband, the grantor, when he delivered the deed to her for the daughtei. 3 Comp. Laws, § 10213 (3 Comp. Laws 1915, § 12555, 5 How. Stat. [2d Ed.] § 12857), applies only to confidential communications between husband and wife during the marriage. Hagerman v. Wigent, 108 Mich. 192 (65 N. W. 756); Jenkinson v. Brooks, 119 Mich. 108 (77 N. W. 640); Ward v. Oliver, 129 Mich. 300 (88 N. W. 631); Thayer v. Thayer, 188 Mich. 261 (154 N. W. 32). This was not a confidential communication within the meaning of the statute. Mrs. Barras was not only expected to deliver the deed to the defendant, but she was particularly directed by her husband to write the defendant about it. The fact that she was not to mention the transfer to certain particular individuals, the sons, did not make the communication confidential.
But the instruction of the court was incorrect when he told the jury that the burden was upon plaintiff to show by a preponderance of evidence, that the deed from the father to defendant had not been delivered. It is true that the possession and production of a deed by the grantee, unexplained, does give rise to a presumption that it was duly delivered. Dawson v. Hall, 2 Mich. 390; Blanchard v. Tyler, 12 Mich. 339 (86 Am. Dec. 57); Wilbur v. Grover, 140 Mich. 187 (103 N. W. 503). And the record of a deed properly executed and acknowledged, may be read in evidence without further proof of delivery. 3 Comp. Laws, § 8990 (3 Comp. Laws 1915, § 12508, 4 How. Stat. [2d Ed.] § 10852); Webb v. Holt, 113 Mich. 338 (71 N. W. 637). And this is true whether the deed was recorded before or after the grantor’s death. But the presumption
But, while it is usually important that the jury should be correctly informed as to the burden of proof, yet the mistake in that respect in this case will not authorize a reversal of the judgment. It is provided by Act No. 89, Pub. Acts 1915 (3 Comp. Laws 1915, § 14565), and also by section 28 of chapter 50 of the judicature act (Act No. 314, Pub. Acts 1915 [3 Comp. Laws 1915, § 13763]), that no judgment or verdict shall be set aside or reversed, on the ground of misdirection of the jury, unless, in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage' of justice. It is conceded in this case that the deed through which defendant claims is in the father’s handwriting, and that it was duly signed and acknowledged by himself and his wife. This shows that he had in mind a conveyance of the land to defendant. If the deed was delivered at the time and in the manner testified to by defendant and by Mrs. Barras, it was an absolute, irrevocable delivery. In that case all of the testimony about the father’s subsequent dealings with the land and his expressions of ownership were immaterial.
The judgment is affirmed.