152 Wis. 318 | Wis. | 1913
Lead Opinion
Henry Butts died intestate in August, 1908, leaving a widow, two children, and several grandchildren as his heirs at law. Prior to August 4, 1905, he owned a farm of seventy-four acres in Bichland county. On such date he executed a warranty deed of this farm to his wife, Elizabeth. It does not appear that such deed ever came into the posses
Elizabeth Butts disposed of tbe farm by will, and tbe contest arises between tbe heirs at law of Henry Butts and tbe devisees under tbe will of bis widow. Tbe circuit court found that there bad been no delivery of tbe deed and that tbe property should be distributed according to tbe laws relating to tbe estates of intestates. Tbe legatees under tbe will, or at least some of them, appeal.
Tbe only question in tbe case is whether tbe finding of tbe
Delivery is largely a question of intention. Curry v. Colburn, 99 Wis. 319, 320, 74 N. W. 778; Zoerb v. Paetz, 137 Wis. 59, 117 N. W. 793. It may be accomplished by words without acts. Bogie v. Bogie, 35 Wis. 659, 666. Conversely, it may also be accomplished by 'acts without words. Cerney v. Pawlot, 66 Wis. 262, 28 N. W. 183; Bates v. Winters, 138 Wis. 673, 120 N. W. 498. Rut the grantor must part with his dominion and control over the deed with intention to pass title. Curry v. Colburn, supra; Prutsman v. Baker, 30 Wis. 644. There are authorities which hold that when it is shown that a deed has been properly executed a presumption of delivery arises. Jones, Evidence (2d ed.) § 50 (44). Delivery may also be implied from circumstances. 21 Cyc. 1290, and cases cited. The presumption of intention to deliver that might arise from the execution of a deed is overcome by showing that the grantor had the deed in his possession and under his control at the time of his death. Shetler v. Stewart, 133 Iowa, 320, 107 N. W. 310; Fisher v. Hall, 41 N. Y. 416.
The inherent weakness in the case for the appellant is that there is nothing in the testimony tending to show that Butts ever uttered a word or performed an act which evinced an intention on his part to vest the title to his property in his wife prior to his death, except to make a deed which he carefully locked up in his strong box, the key of which he carried about his person. He guarded it as closely as he did his pocketbook. When any money was wanted from this he apparently did not permit his wife to get it, but had his grandchild bring it to him so that he could take out what money he saw fit. After his death his widow was unable to find the key. During her lifetime she apparently never told any one
If it should be held that a lesser degree of proof of delivery is required between husband and wife than in other cases, we would still be unable to say that the findings of the circuit judge were against the clear preponderance of the evidence.
By the Court. — Judgment affirmed.
Dissenting Opinion
The following opinion was filed February 26, 1911:
(dissenting). The deed in question was duly made, signed, and sealed in 1905, and placed in a bureau drawer in the house occupied as the home of the husband and wife, grantor and grantee. This drawer was kept locked and the key carried by the grantor, husband. The grantor died intestate in 1908 leaving the deed in the drawer. After his death it was taken therefrom by the grantee and recorded. The property covered by the deed was the homestead. The grantee died in 1910. The only question involved is whether the deed was delivered to the grantee.
Where a deed is found in the possession of the grantee after death of the grantor, there is a presumption of delivery. Jones, Evidence (2d ed.) § 50 (44) ; 1 Devlin, Deeds (3d ed.) §§ 261, 262, 269; Dale v. Lincoln, 62 Ill. 22; Pitts v. Sheriff, 108 Mo. 110, 18 S. W. 1071; Wall v. Wall, 30 Miss. 91; Stevens v. Hatch, 6 Minn. 64. The fact that a deed is found in the possession of a grantor does not always rebut the presumption of delivery, if such possession is consistent with delivery. Bunnell v. Bunnell, 23 Ky. Law Rep. 800; Davis v. Davis, 92 Iowa, 147, 60 N. W. 507; Brown v. Brown, 61 Tex. 56; Reed v. Smith, 125 Cal. 491, 58 Pac. 139.
•While it is true that there must be a delivery in all cases to make a valid deed, a manual passing of the deed to the grantee
In the case at bar there is no evidence sufficient to overcome the presumption of delivery arising from the mahing and sealing of the deed. On the contrary the evidence produced tends to prove delivery. There is no direct evidence that the deed was not delivered. The case is made to turn, in the opinion of the court, upon the fact that the deed was kept in the drawer to which the grantor carried the key. This, in my opinion, does not overcome the presumption of delivery arising from the making of the deed, upon the undisputed facts of the case. Aside from the making of the deed, all the circumstances support the presumption of de
But it is said that the statements given in the same connection by the grantee to the effect that her husband never gave her the deed, but kept it locked in a drawer and that she was unable to find the key, are sufficient to overcome the • declaration that her husband had deeded the property to her. This position is untenable. Her evidence clearly meant that she never had manual possession of the deed, and was not inconsistent with her statement that the property had been deeded to and was owned by her. If there was a delivery the
Moreover, it is not established that the wife, grantee, did not have access to the drawer. There is no direct testimony that she was excluded from it or did not have access to it. The only evidence on the point is that her husband carried the key and the negative evidence of witnesses that they never saw the wife go to the drawer in person. But it appears from the evidence that whenever she desired she sent her grandson to her husband and got the key and had the drawer unlocked. One witness testified: “My mother caused the drawer to be unlocked when she wanted to get money out of.it; that is where Pa kept his money.” The drawer was spoken of as Henry’s drawer, meaning grantor’s drawer. Grantee would say to her grandson, “Get your key and go to Henry’s drawer,” and the grandson testified that he would unlock the-drawer for grantee perhaps once a month. The testimony generally is that she sent her grandson to her husband for the key when she needed money, procured the money, and returned the key to her husband. It is said in the opinion of the court that it does not appear that the husband ever gavé
■ It is also said in the majority opinion that it does not appear that the husband, grantor, ever uttered a word evincing an intention to vest title in his wife, the grantee. There is nothing in the evidence showing that he ever uttered a word evincing an intention inconsistent with vesting title in the grantee. The evidence of the wife that he had deeded the property to her, together with the presumption arising from the making of the deed, clearly establishes the execution and delivery of the deed to her.
Shetler v. Stewart, 133 Iowa, 320, 107 N. W. 310, is cited in the opinion of the court as authority to the point that the presumption of intention to deliver arising from execution of a deed is overcome by showing that the grantor had the deed in his possession and under his control at the time of his death. An examination of this case, however, will -show that it is readily distinguishable from the case at bar. In that case the deeds were made and placed in the private box of the grantor and remained there during his life, and the grantees had no knowledge that such deeds were made until after his death, and there was no evidence of delivery. To the same effect is Fisher v. Hall, 41 N. Y. 416, also cited in the opinion of the court.
The following cases are relied upon in the opinion- of the court, but I think an examination of them will show that they are distinguishable from the instant case: In Reichert v. Wilhelm, 83 Iowa, 510, 50 N. W. 19, there was a contest by the creditors of the alleged grantor, and that question was controlling. In Roup v. Roup, 136 Mich. 385, 99 N. W. 389, it was established that the deeds were not to be recorded until after the death of the grantor and that the object of making was to avoid the expense of administration. Bisard v. Sparks, 133 Mich. 587, 95 N. W. 728, is a case where it was
It is doubtless true tbat if tbe deed were found in possession of grantor at time of bis death, without explanation, there would be presumption of nondelivery. But tbe facts here raise presumption of delivery, and tbat presumption has not been overcome. Tbe wife understood tbe property bad been deeded to her — that it was her property. The evidence shows this, and this evidence is undisputed. Her evidence tbat she never bad tbe deed merely meant tbat it bad been kept in her husband’s drawer, where it might and probably
Besides, these statements were drawn out after she had been told that if she did not have the deed and it was not recorded the property was not hers. There is no question of creditors or testamentary disposition in this case. All the equities favor execution and delivery of the deed. It was the natural and probable thing, under the undisputed facts, for the husband to have done. The attack on the deed was delayed until death had closed the mouth of the grantee so her evidence could not be produced. But even without her evidence and as the record stands, I am convinced that the clear preponderance of the evidence establishes that the deed was delivered, therefore the judgment below should be reversed.
I am authorized to say that Mr. Justice Sílbeosle and Mr. Justice TimliN concur in this dissent.