2 Mich. 390 | Mich. | 1852
The bill in this case was filed by Silas Cogswell, to set aside a deed executed by him to Minerva Hall, Rachael Tozer, and Perline Cogs-well, three of his daughters, and that the registry thereof may be declared of none effect, and for an injunction, &c. It is amongst other things, averred in the bill, that on the 6th day of January, 184^, the complainant was seized of certain real estate therein described, that on that day ho made and executed a warranty deed of such real estate to
An answer of the defendants upon oath is waived.
Although an answer upon oath was put in, denying in the most positive terms,- every material statement in the bill in the above respects; yet as such oath could only avail the defendants for the purpose of obtaining a dissolution of the injunction, the bill and answer for the purposes of the suit' can be regarded simply as pleadings, and the complainant is compelled to resort to his evidence entirely, in support of his action.
It a well settled rule of law, that if the grantor does not intend that his deed shall take effect until some condition is performed, or the happening of some future event, he should either keep it himself, or leave it with some other person as an escrow to be delivered at the proper time.
That it should operate as an escrow it is necessary that the delivery should be made to a stranger, and not to the party; for if one makes a deed and delivers it to the party to whom it is made as an escrow, upon certain conditions, in such case, let the form of the words be whatever it may, the delivery is absolute, and the deed shall take effect presently, as his deed; and the party to whom-it is delivered is not bound to perform the condition, for in traditionibus chartarum, non quod dictum, sed quod factum est, inspiciter. (Fairbanks vs. Metcalf, 8 Mass. R., 230; Gilbert vs. North Am. Fire Ins. Co., 23 Wend., 43; 4 Comyn’s Dig., Title “Fait (A 3,) Delivery,” and notes; 4 Cruise Dig., 36; Touchstone, 58.)
Such being the rule of law, the complainant could only hope to succeed in this case by showing that the deed had never been actually delivered, as his deed to the grantors, for the law will presume this from their possession, (1 Green. Ev., § 38; 4 Pick. R., 518;) but that it was fraudulently and clandestinely procured and recorded.
In the examination of this case, a more than ordinary scrutiny should be exercised. The extreme age and infirmity of the grantor makes it peculiarly imperative upon a Court of equity to see to it, that no meditated imposition — no circumvention or undue influence operated to procure the execution of the conveyance, or to acquire possession of it
It is not denied but that the complainant intended to settle the property embraced in this deed upon these daughters, nor but that such would be ah equal and fair disposal of it, in view of the settlements made upon his other children. Indeed, such is claimed upon his behalf, to-be-the case; but it is insisted that the deed was not to become operative until after his decease, and that of Rachael Cogswell, his wife. This attitude of the cause renders it unnecessary to look into the consideration of the deed. "We have only to inquire whether the grantees exercised good faith and honesty towards him in procuring its execution, and whether he actually delivered it as Ms deed. In the prosecution of these inquiries we do not propose to discuss the evidence at length, but rather to consider its leading features and general character.
A very considerable portion of the complainant’s testimony consists-in narratives of the acts and conversations of the complainant and John Hall, which occurred after the execution and record of the deed, and it becomes an important inquiry how far the rights of the grantees are compromitted by the conduct or conversations of either or both. That, the statements or declarations of the complainant to third parties are admissible in his favor will not be contended for a moment. Subsequent statements of a party’s motives or intentions will not be received to affect the rights of others, or to explain a transaction; it is only the-intention declared at the .time of such transaction, which, as a part of the res gestae, can bind the defendants. ' An exception to this rule exists,, only when the statements are made to a party to be affected by them under circumstances from which his acquiescence in their truth can be fairly inferred if not expressed, and then they are entitled to little or much consideration according to the circumstances under which they are" made. The question is then suggested whether John Hall was. ' srieh a party, and whether he could bind the grantees by his assent to the statements of the complainant, or by his own independent statements- and acts. We think npt. Although the bill contains á general charge against him of co-operation with the grantees to procure the deed and its record, yet as no specific charge is made against him, predicated up
But upon another principle, his admissions should be excluded. It is a well settled rule that the declarations of husband and wife are subject to the same rules of exclusion which govern their testimony as witnesses. (1 Green. Ev., § 341, and notes.) Can the husband in any case be admitted.as a witness for or against the wife in a suit affecfr ing her separate estate, or could a wife be admitted as a witness in a matter affecting the rights of the husband? The answer to these questions determines in how far the parties to this deed are affected by the conduct of Hall, even were that conduct of a character to throw suspicion over this transaction. But wo must confess we can discover nothing in the testimony calculated to excite suspicion of mala fides ujion his part. Nor do we discover in the statements of the grantees themselves, as detailed by the witnesses, any evidence tending to prove fraudulent design or undue influence, or a dishonest appropriation of
If then, the statements of the complainant, under the circumstances, disclosed by. the witnesses, and the acts and admissions of John Hall, are not evidence in support of the bill, and if the conduct of the grantees does not import fraud, it only remains to look at the history of the execution and delivery of the deed as narrated by the witnesses, to determine this question of fraud. Upon this point we have only the testimony of Alexander D. Crane, the attorney by whom the deed was drawn, and of Oliver Chapman, one of the subscribing witnesses, and the magistrate before whom 'its execution was acknowledged. From the testimony of Mr. Crane it would appear that the complainant went to his office alone, and procured him to draw the deed in question. That at that time he asked the witness for a will, which it apjiears he had made on a previous occasion and deposited with him, and said he had concluded to make a different disposition of his property. As a reason for this change of purpose, he stated that he had no peace at home; that his wife and Almira (Mrs. Dawson) had found out that he had made his will, and were not satisfied with its j>rovisions, and that he had no peace at home, in consequence, &c. He stated that he had deeded a portion of his property to Almira, and that she had obtained more than her share of the personal property; that he was getting old, and he wanted to make such a disposition of his property that there would
We look in vain to this testimony for evidence of fraudulent design,, or the exercise of undue influence by the grantees in this transaction; nor can we discover anything which would tend to the conclusion that, the deed was to be reserved from record, and not to operate immediately. On the contrary, everything indicates that the complainant was uninfluenced and unrestrained. Ho appears to have designed the distribution of his remaining property, (for he had already, as it seems, made provision for Almira Dawson,) as nearly equal as possible among his other children. Provision had been made, it would appear from the testimony of Mis. Dawson, for the maintenance of himself and wife, by her; and from aught that appears, ample compensation had been made for such support Indeed, such is the almóbt inevitable conclusion from all the testimony. The testimony of Mr. Chapman discloses a transaction so natural — so perfectly consistent with strict integrity upon the part of the defendants concerned, that we can draw no -conclusion from it, to sustain the charge that' undue influence was exercised to obtain the deed, or faith violated in procuring its record.
Decree affirmed.