Chase v. Woodruff, 133 Wis. 555

Chase v. Woodruff

133 Wis. 555 | Wis. | 1907

Maesiiall, J.

Respondent established title to the property in himself, if the deed to his wife was delivered to her as a conveyance according to its import. The uncontroverted evidence that he was her sole heir at law proved his succession to whatever title she had. He was not called upon to show negatively that she did not die testate. As the primary right of succession is by the law of inheritance, plaintiff was entitled to rest on the legal presumption of intestacy until that was rebutted by evidence. McClanahan v. Williams, 186 Ind. 30, 35 N. E. 897.

It is conceded that if the deed was not delivered till after the grantor married and the property in question was a homestead, or part of one, the instrument was void, but there was no evidence that such was the chai’acter of the property.

*559It is conceded, as the fact is, that possession of the deed by respondent’s wife at the time of her death, in the absence of any other evidence raises a presumption that it was delivered to her to take effect according to its import at the time of its execution, and that the fact, if it be a fact, that the instrument was not delivered till some years after its date raises a presumption that it was intended to take effect when so delivered. So the cause turns on whether the prima facie proof of title made by the circumstance that the deed was in fact in possession of respondent’s wife, at least many years prior to her death, was rebutted so as-to raise a jury question respecting the character of such possession.

The court in deciding the motion to direct a verdict rightly rejected the evidence as to what Julius E. Woodruff said to Frank about having delivered the deed to Jennie for safe-keeping. That declaration, if made, was of a self-serving character and so was clearly not provable to defeat the deed which years before had passed into Jennie’s possession. The rule on that subject is elementary. Welch v. Sugar Creek, 28 Wis. 618; Jilsun v. Stebbins, 41 Wis. 235; Fay v. Rankin, 47 Wis. 400, 2 U. W. 562.

With the evidence above referred to out of the record there is only left circumstantial proof impeaching the .prima facie case made by the undisputed fact of Jennie’s possession of the deed. Whether such proof was sufficient to raise a jury question must be decided as an original proposition. The ordinary rule that the conclusion of the trial court should not be overruled unless it appears to have been clearly wrong on the question of fact does not apply because the court’s •conclusion was reached by applying a wrong rule of law.

As indicated by the statement, the court held that the prima facie case referred to should prevail unless the contrary was established beyond all reasonable controversy. Kercheval v. Doty, 31 Wis. 476, 491, was relied on by the learned court. Counsel for respondent, now relying thereon, *560add to tbe trial court’s citation, Baumann v. Lupinski, 108 Wis. 451, 84 N. W. 836, and Linde v. Gudden, 109 Wis. 326, 85 N. W. 323. They axe all cases where it was sought to defeat a deed upon the ground of fraud, and have no application, as it seems, to a case of this sort where no fraud is claimed and the only question is whether a deed found in possession of a grantee therein named, which was unquestionably placed in her possession, was delivered to take effect according to its tenor. Doubtless the evidence to efficiently rebut the prima facie effect of such possession should be pretty clear and satisfactory, but it need only be sufficient to so far impair the effect of such possession that it cannot stand as a matter of law as establishing with reasonable certainty ■full delivery of the instrument. Something quite short of establishing absolute nondelivery beyond all reasonable conr troversy is sufficient to raise a jury question.

As indicated in the statement, there are these circumstances throwing some doubt upon whether the deed was delivered to Jennie so as to place the same beyond the control of the grantor and with the purpose of vesting the title to the property therein described in the grantees. No claim was made-under the deed by respondent’s wife during her lifetime, covering a period subsequent to the making of the deed of thirty-four years. It is, at least, quite doubtful whether she had possession of the instrument till some twenty years after it was made. It was made when she was a child, and the indications are that the property was treated by the grantor up to the time of his death regardless of its existence. His failure to recall the instrument, if it were subject to recall, after his daughter died, is explained by the circumstance that respondent disclaimed having any knowledge of the whereabouts thereof. The father’s conduct in treating the property as he did, and, after waiting some three years subsequent to his daughter’s death for the production of the old deed with an assertion of title thereunder, conveying the *561land to Frank, and respondent’s failure to produce the paper and denial of knowledge of its whereabouts till after Frank had taken possession of the property and improved the same, are significant. All of these circumstances and others that might be mentioned are not entirely consistent with the theory that the deed was delivered to Jennie to take effect according to its import; that the father absolutely parted with control of it. We are constrained to hold that the question involved under proper instructions should have been submitted to the jury, and that the learned court below would so have held had the wrong rule of law before mentioned not been applied to the case.

By the Court. — The judgment is reversed, and the cause remanded for a new trial.