47 Neb. 399 | Neb. | 1896
This was a suit by Rnthie Brown against Sam Westerfield and Ida Westerfield, his wife, and Louis and Jimmie Brown, to quiet the title in plaintiff to the south half of lot C, a subdivision of lots 4, 5, and 6, in block 28, of Kinney’s O Street Addition to the city of Lincoln. The petition alleges that plaintiff is the only living child of Hannah and James Brown; that on the 20th day of June, 1883, the said Hannah Brown, now deceased, being the owner in fee-simple of the real estate above described, together with her hus
The uncoritradicted testimony shows that James and Hannah Brown signed and acknowledged a deed of conveyance to their daughter, Euthie Brown, one of the plaintiffs herein, for the premises in controversy, reserving a life estate therein to James Brown, one of the grantors. It was never actually delivered to the grantee in person, nor was it ever placed upon record. The instrument is not now to be found. A deed is merely the evidence of the grantee’s title. The loss or destruction of the deed did not divest plaintiffs of their title, if they ever acquired one. And whether the title ever passed from Mrs. Brown, the owner of the fee to this property, depends upon whether the facts disclosed by this record amount, in law, to a delivery of the deed in question. It appears from the evidence adduced that Hannah Brown, being the owner of the property in dispute and another tract of the same size adjoining it on the north, on the 20th day of June, 1883, caused two deeds to be prepared by J. H. Brown, a jfistice of the peace of the city of Lincoln, one covering the north portion to Sam Westerfield, one of the defendants, and the other covering the south tract to Euthie Brown, subject to a life interest in her father, James Brown. These deeds, properly witnessed, were signed and acknowledged by both Hannah and James Brown before said justice of the peace. The magistrate is the only person who testified as to what transpired at the time, and the disposition made of the deeds. He states, in substance, that he had acted as Mrs. Brown’s legal adviser, having at various
The matter of contest is whether there was in law a delivery of the deed, for a delivery is indispensable to its binding effect. But, as was said by Chief Justice Lake in Brittain v. Work, 13 Neb., 347: “No particular act or form of words is necessary to constitute a delivery of a deed. Anything done by the grantor from which it is apparent that a, delivery was intended, either by words or acts, or both combined, is sufficient.” Delivery of a written instrument like a deed is largely a question of intent to be determined by the facts and circumstances of the case. In the case at bar it depends on whether the intention of the grantor at the time was that the deed should operate as a muniment of title to take effect presently. In other words, did Mrs. Brown part with control over the instrument and place the title in her daughter? If such was the purpose, the delivery was complete, and the title to the property passed. (1 Devlin, Deeds, secs. 260-262; Warren v. Swett, 31 N. H., 332; Jordan v. Davis, 108 Ill., 336; Burkholder v. Casad, 47 Ind., 418; Masterson v. Cheek, 23 Ill., 73.) From an examination of the evidence we are satisfied that it establishes a delivery of the deed. It was placed in the hands of the magistrate who took the acknowledgment to hold for the grantee. This was sufficient to carry the title to the land. (Byington v. Moore, 62 Ia., 470; Hinson v. Bailey, 73 Ia., 544; Black v. Hoyt, 33 O. St., 203; Lessee of Mitchell v. Ryan, 3 O. St., 377; Albright v. Albright, 70 Wis., 528; Ball v. Foreman, 37 O. St., 132.)
It is argued by appellants that the conveyance was intended to operate in the nature of a testamentary disposition of the property, not to take
Affirmed.