Cowell v. Daggett

| Mass. | Oct 15, 1867

Foster, J.

“ By the common law all persons whatever may be grantees in a deed, because it is supposed to be for their benefit. But infants, married women and persons of insane memory may disagree to such deeds and waive the estates thereby conveyed to them.” Cruise Dig. tit. 32, c. 2, § 31. Concord Bank v. Bellis, 10 Cush. 276.

A. delivery of a deed by the grantor to the register of deeds to be recorded for the use of the grantee, and the grantee’s subsequent assent to the same, is a sufficient delivery from the time of such assent. Hedge v. Drew, 12 Pick. 141. Thayer v. Stark, 6 Cush. 11. Shaw v. Hayward, 7 Cush. 170.

In the present case the grantor caused the deed to be recorded. The minor grantee had notice of its execution on the day when it was made. Her assent may be inferred from the fact that the transaction was for her benefit, and from the conversation with her father. He told her that Pond had given her a deed of a house and land in Wrentham in part payment of her legacy. She replied that she preferred money to a house and land; her father then said that if she pleased she could sell the real estate and convert it into money; and nothing more was said on the subject. This, we think, would have been sufficient acquiescence and assent in the case of an adult, and we are satisfied that enough took place on that day to transfer the title to the estate as between grantor and grantee.

Is the transaction voidable in favor of the assignee in insolvency of the grantor as a fraudulent preference contrary to the provisions of the insolvent laws ? No doubt, on the part of the grantor, it was intended and given as a preference. But, to be liable to be set aside, it must also have been accepted as such by the grantee, who at the time of receiving the payment or security must have known or had reasonable cause to believe that the grantor was insolvent, or in contemplation of insolvency. This case is before us on an agreed statement, a part of which is that the grantee “ had no knowledge or reasonable cause to believe that, the grantor was insolvent or in contemplation of insolvency when the deed was delivered.” This concludes all inquiry into the circumstances and all inferences from the character of the transaction, unless the grantee was affected by notice to her father, who did know enough to render the transaction voidable if he was her agent in such a sense that notice to him operated as notice to her. But he was not her legal guardian, and could not have received payment of the legacy on her behalf. She had given him no authority to act for her in obtaining security. The execution of the deed was the voluntary act of the grantor without any communication with either the father of the tenant or herself. The father did not even put the deed on record, but only read it and handed it back to the grantor, by whom it was recorded. It is tue that the father was the medium of communication, by whom the tenant learned that the deed had been made for her benefit; but this does not make him her agent, or affect her with notice of the facts he knew. If she had been informed of the deed by the grantor himself, or the conveyancer who drew it, or by the register of deeds, or casually by any third party, or in any other way, it would hardly be claimed that the person who told her was her agent so that the law will intend that she knew everything as to the grantor’s pecuniary condition known to her informant. It is impossible for us, on these agreed facts, to treat the question of agency differently because her knowledge was derived from her father.

Notice to her, or knowledge by her of the execution of the deed, may have been necessary to enable her to perfect the delivery by assent. If so, she had the knowledge, and gave the assent. The tenant has obtained a preference over other creditors of an insolvent debtor, but it appears to have been done under such circumstances that she is entitled to retain it; and we cannot strain the facts or alter the rules of law to take ii from her. Judgment for the tenant affirmed.