294 N.W. 714 | Mich. | 1940
Lead Opinion
The bill should be dismissed with costs to defendant.
The father wanted his son to have the home place and personally acted to accomplish that end. The *369
deed to the Scotts was recorded by the grantor on September 5, 1928, for the purpose of carrying out such intention, was valid for such purpose and constituted a sufficient delivery. The deed by the Scotts was an act of acceptance thereof for the purpose intended and their deed to defendant vested title beyond assail by heirs at law of the deceased grantor. The recording of the deed to the Scotts by the grantor, with intent that it then be effective, constituted sufficient delivery in this State. Blanchard v. Kingston,
The record is replete with evidence of what the father intended, and the circuit judge found the father intended to vest title in the son but was of the opinion there was no valid delivery of the deed to the Scotts and no consideration.
Such finding of intentional recording of the deed by the grantor to the Scotts does not present a rebuttable presumption of intention open in a case of mere recording of a deed.
The deed to the Scotts was recorded by the grantor September 5, 1928, at 10:42 o'clock in the forenoon. The deed from the Scotts to defendant was executed September 5, 1928, and recorded the next day at 9:28 o'clock in the forenoon. So, it is fair to assume that the deed to the Scotts was on record at the time the Scotts executed the deed to defendant.
The deeds, intended by the father to vest title to the property in his son as a voluntary gift, required no pecuniary consideration. *370
The question whether the special administrator can prosecute this kind of a suit is not presented by counsel and, under dismissal of the bill, need not be considered.
SHARPE, CHANDLER, NORTH McALLISTER, and BUTZEL, JJ., concurred with WIEST, J. The late Justice POTTER took no part in this decision.
Dissenting Opinion
Plaintiff, as special administratrix of the estate of Henry Flood, her deceased father, filed a bill in equity to have two deeds set aside. The property involved, located in the city of Flint, was acquired by the deceased in 1921. In 1926, he negotiated with George L. Scott for the exchange of property and, on July 27th of that year, Flood and his wife executed a warranty deed to Scott and his wife. The exchange was never consummated and the deed was retained by Flood. Flood and his wife were separated but not divorced and, although she survived him, she testified that *368 she had no interest whatever in the property in question.
On September 5, 1928, the Flood-Scott deed was recorded and, the next day, a quitclaim deed from Scott and wife to defendant Marion Francis Flood. Marion Flood is the son of Henry Flood and lived with his father on the premises. There seems to be no question that the father wanted the son to have the property. Henry Flood died on April 14, 1939. Defendant is in possession and claims title under the deed from the Scotts.
Scott and his wife testified that the warranty deed from the Floods had never been delivered to them, nor did they remember executing the quitclaim deed to Marion Flood, although they admitted that the signatures appeared to be their own.
The trial court held that the Scotts did not receive title to the property because there had been no delivery of the Flood deed to them. The court also held that the quitclaim deed was void because the Scotts had no title to convey to the defendant. A decree was entered setting aside the conveyances.
Defendant contends the court erred in holding that there had been failure of delivery of the Flood-Scott deed. The fact that the deeds were recorded creates a presumption of delivery, but that presumption is rebuttable. Barras v. Barras,
The testimony is sufficient to sustain the finding of the trial judge that the presumption of delivery was clearly rebutted.
The decree should be affirmed, with costs to appellee.
