99 Neb. 557 | Neb. | 1916
The action is ejectment for the northeast quarter of section 18, township 30, range 15 west, Holt county. The parties are brothers. Plaintiff relies on a deed executed by his father and mother August 17, 1909. Defendant.
The first question presented is the delivery of the deed under which plaintiff claims title. The grantors, John J. Flannery and wife, occupied the premises as a homestead. They had three sons and four daughters. One of the daughters died November 7, 1908. Thereafter the father talked about giving the sons land and the girls money. August 17, 1909, he and his wife went to Stuart, where he consulted an attorney, who drew the three deeds described in the reply. All were executed and acknowledged by both grantors. In the evening, after they returned, while plaintiff and defendant were in the kitchen, their father took the deeds from a pocket in his coat, and laid them on the table, saying, according to plaintiff, “Here are those deeds,” and, according to defendant, “Those are the deeds.” Each picked up a deed, read the one in which he was named as grantee and replaced it on the table. The father told defendant to put the deeds in the former’s tin box where he kept his papers. Defendant did as directed. Both
Delivery is essential to the validity of a deed. The intention to deliver a deed must be shown by acts or words, or by both combined. Brittain v. Work, 18 Neb. 347. The rule in this state is: “Delivery of a written instrument like a deed is largely a question of intent, to be determined by the facts and circumstances of the case.” Brown v. Westerfield, 17 Neb. 399.
In the present case the intention essential to a delivery is not shown. The father retained possession of the deed. He said it should not be recorded until after his death. There was no change in possession, control, use, or benefits. The father continued to exercise rights at variance with a transfer of the fee. His acts and expressed purposes, both before and after the execution of the deed, are inconsistent with an intention to deliver it. There was
It is contended, further, that defendant is estopped to deny-plaintiff’s title and right of possession. This plea is based on an alleged settlement under which plaintiff paid and defendant retained $2,000. Since the deed on which plaintiff relies was never delivered, he has no legal title and cannot maintain ejectment. Each party’s interest in the land is that of an heir, plaintiff being entitled to credit for the amount contributed by him to the improvement of his father’s estate upon discharging and satisfying any apparent incumbrance created by him.
The judgment of the district court is therefore reversed and the action dismissed.
Reversed and dismissed.