170 Wis. 556 | Wis. | 1920
Lead Opinion
The following opinion was filed March 4, 1919:
There is but one serious question in this case, and that is the question whether the finding of the trial -court to the effect that the deeds in question were delivered with intent to presently convey the property is sustained by the evidence,' and we approach this question mindful of the principle that the findiiig must be sustained unless it be against the clear preponderance of the evidence.
The legal principles applicable to the case are comparatively simple and free from doubt, and may be briefly recapitulated as follows: A deed is of no effect until delivered. The delivery may be by actual tradition of the document to the grantee or to some third person for him, or it may be by other, acts deemed in law to amount to the same thing; but in either case there must be the intent presently to pass the title. The manual possession of the instrument by the grantee creates a presumption of delivery, which, however, may be overcome by evidence showing that the possession came about without intent to pass title but to accomplish some other purpose. A secret intent on the part of the grantor that title shall not pass when the deed is manually given into the possession of the grantee will not prevent the passing of title, but if the intent on both sides
Careful study of the evidence in this case convinces us that the idea of all the parties to the transaction was that the . deeds were to operate as testamentary documents only and were to have no effect during Witt’s lifetime. It would serve no good purpose to repeat the evidence in this opinion; it will be found quite fully set forth in the statement of facts. It is sufficient now to say that not only the direct evidence, but all of the significant circumstances surrounding the transaction and occurring since that time, confirm the statement of Mr. Suelflow, namely, that the property was not to be Mrs. Witt’s until after he (Mr. Witt) was dead, and was to be his as long as he lived. We are convinced that the findings to the effect that the deeds were delivered with the intention of presently conveying the property are contrary to the clear preponderance of the evidence.
The respondents challenge the correctness of the court’s finding to the effect that the deed executed March 23, 1916, by Carolina Witt, naming the defendants as grantees, was never delivered to them. In the view we have taken of the case this question becomes immaterial, but in any event we see no reason to doubt the correctness of the finding. Some questions are raised by the respondents relating to the practice adopted in the proceedings for revival of the action, but
By the Court. — Judgment reversed, and action remanded with directions to enter judgment for the plaintiff in accordance with this opinion.
Rehearing
The respondents moved for a rehearing.
In support of the motion there were briefs by Henry E. Foelske, attorney for respondents, and Christian Doerfler, of counsel, both of Milwaukee.
In opposition thereto there was a brief by Arnold C. 0 tto of Milwaukee, attorney for the appellant.
The motion was granted on May 27, 1919, and the cause was reargued October 11, 1919.
The following opinion was filed December 2, 1919:
The reargument has convinced us that we were in error in reversing the judgment in this case, and the former 'opinion must be considered as withdrawn and the judgment of reversal set aside.
The trial court’s findings were that both deeds were delivered with the intention of conveying the property, but this court held that these findings were contrary to the clear preponderance of the evidence and- that the evidence demon.strated that the deeds were understood by all parties to be testamentary documents only and were never delivered with intent that they should take effect as deeds. We now think that this was an erroneous-holding. The only direct testimony as to what was done with the deeds after their execution was the testimony of Frank Suelfiow, the real-estate man, the grantee named in the first deed. He testified directly that Mr. Witt executed the first deed running to him (Suelfiow) and gave it to him, and that he then had an-' other deed made out signed and executed by himself and wife, and that he (Suelfiow) gave both deeds to Mrs. Witt
Mature consideration convinces us to the contrary. The conclusion rather is that the deeds were intended to be-legally effective at once (in the sense of not being subject to revocation), but were expected not to pass the title until the happening of an outside event, namely, the death of the grantor; in other words, the grants were upon condition.
No court has more positively or consistently held that there cannot be a conditional delivery of a deed to the grantee himself than this court. In Hinchliff v. Hinman, 18 Wis. 130, it was held that if a deed is executed and delivered with intent to pass the estate to the grantee it must so operate though both parties supposed that it would not take effect until recorded and also supposed that while unrecorded the grantor might control or revoke it. In Lowber v. Connit, 36 Wis. 176, it was said that if a grantor of land does not intend his deed to take effect until some condition is performed he must keep it to himself or leave it in escrow with a stranger and not deliver it to the grantee. In Prutsman v. Baker, 30 Wis. 644, the subject of conditional delivery of a deed was discussed by Chief Justice Dixon, who said: “A conditional delivery is and can only be made by placing the deed in the hands of a third person, to be kept by him until the performance of some condition or conditions by the grantee or some one else, or until the happening of some event” when it is to be delivered by the depositary to the grantee. These cases were followed in Rogers
The reason of the rule is quite obvious. If it were possible to prove in every case that parol conditions were attached to the formal delivery of a deed, there would be no safety in accepting a deed. Titles would be open to attack at all times, and the practical result would be to defeat the solemn provisions of a duly executed and formally delivered deed by parol testimony. There were circumstances .in the present case tending quite persuasively to show that both Mr. and Mrs. Witt supposed that the title remained in Mr. Witt during his life, but of course their erroneous impression as to the legal effect of the transaction could not control that effect. If the law is, as we now hold, that such conditional delivery made to the grantee at once becomes- an absolute delivery freed of the supposed conditions, then the controversy here is closed, because the title at once passed in spite of the idea of the parties that it was not to pass until after Mr. Witt’s death.
There are authorities justifying more or less satisfactorily our former holding, some of which will be found cited
By the Court. — Judgment affirmed.
A motion by appellant for a rehearing and for a modification of the mandate as to costs, made December 31, 1919, was denied, with $25 costs, on February 10, 1920.
