Lead Opinion
A decision of this case involves an inquiry (1) as to the character and effect of the instrument in question executed by Cullen G. Cribbs, whether it be a deed conveying the property in trust, as it purports on its face to do, or a testamentary paper intended to take effect at the death of the testator; (2) if it be found to be a deed, and not a testamentary paper, whether the same was delivered by the grantor so as to become effective; and (3) whether the сourt below had jurisdiction of the subject-matter of the suit, so as to grant the relief sought by the prayer of the complaint.
1. Is the instrument in question a deed, or a testament?
This court in the case of Bunch v. Nicks,
The only marked difference between the instrument under consideration and the Nicks deed, so far as it may distinguish it as a deed from a will, are the clauses reserving to the grantor the right to direct the disposal of the property and the right of revocation in the event of the predecease of the trustee. Do these necessarily stamp the instrument as a will ?
In Nichols v. Emery,
The case of Hall v. Burkham, above cited, is especially instructive, the instrument involved being almost identical with the one under consideration here in every essential feаture, and it was held to be a deed, and not a will. The court there said: “The argument that it is a will is founded chiefly upon the provisions by which Mrs. Hall reserved the possession and use of the property during her life, and a power to revoke the instrument. According to numerous decisions of this and other courts, the former of these provisions does not by itself produce the effect contended for. And in regard to the power of revocation,'the better opinion is that it tends rathеr to rebut than to sustain the idea that the instrument containing it is of a testamentary character.”
Says Mr. Jarman: “But, as already observed, an instrument is not testamentary merely because actual enjoyment undfer it is postponed until after the donor’s death. If it has present effect in fixing the terms of that future enjoyment, and therefore does not require the death of the alleged testator for its consummation, it is not a will.” 1 Jarm. on Wills, p. *25.
“A deed may be executed and retained in the possession of the grantor or some other person, as an escrow, to be delivered to the grantee upon the death of the grantor. Thus, an instrument having the form of a deed, signed, sealed and acknowledged by a grantor on his deathbed, and handed to the attending physician to be kept by him until the death of the grantor, when it is to be recorded, is a deed, and not a will.” 1 Underhill on Wills, p. 54; Stout v. Rayl,
In Kelly v. Parker,
In our opinion the form and lauguage of the instrument clearly indicate the intention of the grantor to convey the legal title in presentí. . It contains apt words of conveyance usually employed in a deed of conveyance, and the reservation to the grantor of the use during his life and the right to direct a conveyance to be made by the trustee to other parties and to recall or revoke the trust, all, instead of showing an intention to make the instrumeñt a testamentary paper to take effect only at his death, imply an immediate passage of the title. If Cribbs intended the paper to be a will, and retained it in his possession as such, why the necessity of incorporating those reservations in the instrument? If it was not to take effect until his death, the reservation of the life estate and right to direct a sale and to revoke the trust was useless,- as under a will he possessed those rights and powers, and more, without such express reservation.
We conclude, therefore, that the instrument was a deed which, if delivered so as to become effective, conveyed the legal title in trust for the purposes therein set forth.
2. The next question presented is whether or not the deed was delivered so as to become effective. The question of delivery of a deed is one of intention of the grantor, as manifested by his acts or words, or both. 9 Am. & Eng. Enc. Law, p. 154, and cases cited.
It is shown that the grantor employed to prepare the deed Judge Sam. W. Williams, now deceased, a profound lawyer of wide experience, and especially learned in- the law governing titles to real estate, and conveyances thereof; that he acted upon the advice of his attorney, not only as to the form of the conveyance, but also as to the details of a delivery. Mrs. Cribbs testifies that he delivered the deed to her, and said: “Kate, here is this deed of trust: now, read it over; to my judgment I think that is the proper thing.” That she read it over, and it was agreed that Mr. Cribbs should take the deed, and put it away in his safe, where it should remain until his death. It is true that her testimony is somewhat equivocal and confusing as to what they (she and her husband) thought about the effect of the deed, and as to his statements of his intention concerning the immediate effect of the conveyance, whether it took effect only at his death or vested the titlе immediately with a postponement of the enjoyment until his death; but a perusal of the whole of her testimony shows that she intended to express the meaning that the delivery was complete. It is evident, we think, that, acting under the advice of his attorney, Mr. Cribbs, did everything he could by delivering at that time to effectuate the conveyance. In other words, that he handed the deed to his wife, the grantee therein, with intent to accomplish a legal delivery, and to put into full operatiоn the trust created by the terms of the deed.
Mr. Bradshaw testifies that Cribbs told him that he had delivered the deed to his wife as Judge Williams had advised him. This testimony, as a self-disserving statement, was competent against him or those who claim under him adversely to the deed.
There is no testimony disputing the delivery of the. deed, unless we find something in the conduct of the parties which rebuts the idea of any intention to deliver. Stress is laid upon the fact that the deed was found among the effects of the grantor after his death, which, it is said, raises a presumption against delivery. This presumption does not arise where the grantor reserves an interest in the property conveyed, and therefore has an interest in the preservation of the deed. Blakemore v. Byrnside,
3. It is further contended that the conveyance is void because contrary to the rule against perpetuities. The words “children and their descendants/ ’employed in thе deed, refer to those surviving at the time of the death of the children of the grantor, and bring the case within the rule that the power of alienation may be postponed for the period of a life or lives then in being.
4. The jurisdiction of the chancery court is challenged upon the ground that the complaint shows that the plaintiffs were not in possession of the lands, and that the suit should have been transferred to the law court. The primary object of the suit is to cancel the deed executed but not delivered by C. G. Cribbs, which, it is alleged, the defendant, Katie G. Cribbs, fraudulently took from the safe of the deceased and filed for record. The recoverv of possession and partition of the lands are incident to the main relief sought. Jurisdiction of the chancery court is asserted to cancel the deed, upon the ground that one of the defendants, by her fraudulent act, procured and placed of record a deed purporting to havе been executed and delivered by plaintiffs’ ancestor, which, on its face, barred their right of recovery. It may be conceded that in a suit at law for possession proof could have been introduced to show that the deed had never been delivered, but does that prevent an exercise of jurisdiction by a court of equity on account of the fraud? Where one has procured a conveyance by fraud or duress or other unfair means, that can be shown, at law to avoid the conveyance; nevertheless, a court of equity will interpose to relieve from the fraud.
This court, speaking through Mr. Justice Wood, in Maloney v. Terry,
Ordinarily, a court of chancery will not assume jurisdiction to remove a cloud upon title, or to make partition where the lands' are held adversely by the defendants, and the plaintiff has the legal title, because in that case the plaintiff has a complete and adequate remedy at law, and equity will not interpose merely to try the title. But where primarily the relief sought is such as is peculiarly within the еstablished powers of courts of equity to grant, such as fraud or misconduct of one standing in a relation of trust, then the jurisdiction will be assumed and exercised, even though further relief of a purely legal nature is asked as an incident. Apperson v. Ford,
In Apperson v. Ford, supra, this court said: “Relief against a deed alleged to be fraudulent has been held to be a proper case for equitable' jurisdiction, though fraud is examinable at law as well as in equity.”
In McGaughey v. Brown, supra, Chief Justice Cockrill, said: “There is no mistaking the object of the bill. It seeks to establish title to the lands in the appellees; and, that being accomplished, to reap the advantages that follow ownership, i. e. possession. * * * It was competent for equity to grant the full measure of this relief. It frowns upon a multiplicity of suits, and where the appellees had successfully invoked its aid to invest them with the legal -title, it would not then remit them to an action at law to recover possеssion; but, having taken jurisdiction of the case for its own exclusive purposes, it would retain the cause to administer the legal after the equitable relief.”
This does not conflict with the doctrine stated in Ashley v. Little Rock,
The jurisdiction of the chancery court in this case must be sustained for another reason. The appellees have sought the jurisdiction of that court for relief, and can not complain if it is exercised against them, the court having the jurisdiction of the subject-matter and of the parties. It is not a case where there is such a lack of jurisdiction of either the parties or subject-matter as the parties can not waive. Where a suit is improperly brought in еquity, it should not, on that account, be dismissed, but should be transferred to the law court; and if no motion is made to transfer the cause, the objection is waivedr Apperson v. Ford,
Now, if defendants are held to have waived the jurisdiction of the chancery court in such instance by submitting to a trial of the issues there without objection, and without asking for a transfer, a plaintiff who voluntarily seeks such jurisdiction must be held bound by its exercise.
The decree is therefore reversed, with directions to enter a decree dismissing the complaint for want of equity.
Dissenting Opinion
(dissenting), Mr. Justice Battle and I are of the opinion that the complaint herein lacks every element of equity jurisdiction. The defendants by demurrer promptly met this question, and we are of opinion that the chancellor erred in overruling it, and for that reason the case should be reversed, and the cause either dismissed or a transfer to a court of law had, as the parties might, elect.
The determining question in this case is оne of fact, which should be submitted to a jury. I am of opinion that, while the instrument is a deed on its face, yet the evidence shows that it was not intended to operate as a deed, but was essentially a testamentary disposition of the property through the legal formalities of a deed. In other words, the evidence convinces me that this instrument was not intended to have any effect as a deed, but to be brought into life only when the grantor died, as a disposition then to be had оf his estate.
Rehearing
on rehearing.
Mrs. Lina Davis, one of the appellants and one of the defendants below, on petition for rehearing, calls attention to the failure of the court to consider the questions raised by her cross . complaint, which was dismissed by the chancellor for want of equity.
The case was determined here upon the theory that the cross complaint was withdrawn before the trial below, but on further inspection of the -record we find that the same was renewed, as claimed in the petition for rehearing. We therefore proceed to determine the issues therein raised.
The renewal of the cross complaint was made at the time of the presentation of-the case below, and the court proceeded to a hearing without requiring an answer thereto. However, proof was taken directed to the issues thereby, and the failure of the cross complainant to require an answer is held to be a waiver thereof. Pembroke v. Logan,
It is not proved that Cullen G. Cribbs assumed the payment of the incumbrance created by the lease to Reaves. W. H. Snipes, the husband of Cribb’s grantor, who leased the property to Reaves, made the assertion in his testimony that Cribbs assumed the obligation of carrying out the lease to Reaves, but on cross examination he qualified his statement by saying that he had no personal knowledge of the fact, and had no information concerning it except what his wifе had told him. Mrs. Cribbs testified that at the time of the execution of the deed and afterwards, up to a short time before his death, Mr. Cribbs expressed his desire for the payment of the incumbrances on the property leased to Reaves out of his funds in bank. She says it was understood, when the deed was executed, that he would pay off the incum-brance, and afterwards he mentioned it to her several times.
No reference to the incumbrance is made in the trust deed executed by Cribbs, and no definite agreement concerning the same, either verbal or written, has been shown in the record. We are asked to hold that, by reason of the gift by Mr. Cribbs to his daughter, Mrs. Davis, of the real estate, an obligation on his part to remove the incumbrance thereon will be implied and enforced against his estate. In support of this proposition, we are cited to the doctrine stated in Thornton on Gifts, § 402, to the effect a “donee of land takes it without the incumbrances therеon,’’ though the donor “may, by express words or the like, give the land subject to the incumbrance, or make it a consideration of the gift.” The single case cited by the author does not support his statement of the law, and we have been unable to discover any decision holding to that rule. We cannot subscribe to that doctrine, "for it seems to us plain, upon principle, that no obligation to remove an incumbrance should be implied from a gift of the incumbered premises. We think it mere consonant with sound reason and justice that, in the absence of any express agreement to the contrary, the donee takes the property with the incumbrance, free from any obligation on the part of the donor to remove the same.
It is also contended by learned counsel that the testimony establishes an agreement on the part of Mr. Cribbs to pay off the incumbrance out of his funds in bank. If it be conceded that there was a considerаtion for the alleged agreement, or that the same without consideration was enforcible,, we think that the proof falls far short of such definite and'specific agreement as is sufficient to engraft upon the deed of gift executed by Mr. Cribbs an obligation to remove the incumbrance. It appears to us that his statements concerning that matter gave expression only to a parental design on his part which, doubtless he would have carried into effect if he had lived until the incumbrance had matured by expiration of the lease, but which is wholly insufficient to create an enforcible obligation. It lacks entirely the elements of a contract, such as calls for enforcement by a court of equity.
Courts cannot enforce such expression of benevolent designs, however meritorious the purpose may be, unless put in such definite shape that can be laid hold of with certainty. As no mention was made in the former judgment of this court considering the cross complaint, judgment will now be entered affirming the decree of the chancellor, in so far as the cross complaint wras dismissed for want of equity.