78 Miss. 16 | Miss. | 1900
delivered the opinion of the court, first appeal.
In 1856 W. T. Barnard, then a widower and a large landowner in Issaquena county, married Mrs. Eudora Likens, a widow without children. No children were born to them. Mrs. Likens brought to her husband about $23,000 in money and property. The war having ruined his fortune, and suits being threatened, W. T. Barnard executed to R. S. Buck, as trustee, a deed in trust, conveying lands therein described, to secure the repayment of his indebtedness to his wife: This was done September 29, 1866. Buck sold under this trust deed, and, on January 4, 1870, executed a conveyance of.these lands to Mrs. Eudora Barnard. Other conveyances were later made to Mrs. Barnard, whereby she acquired other lands. Of all these lands, it is admitted, she remained the owner to the time of her death, except certain lands excepted by agreement. All this while, however, W. T. Barnard remained the owner of 160 acres of land, included in the trust deed in controversy, up to the execution of that instrument. W. T. Barnard had by a former wife a son, W. B. Barnard, Sr., and a daughter, Sarah Louisa, then Mrs. Hall. W-. B. Barnard, Sr., had three children — W. B. Barnard, Jr., his youngest child, and West Barnard and Virginia Barnard (now Virginia Crockett). Mrs. Eudora Barnard took WT. B. Barnard, Jr., upon his -mother’s death, and seemed to have been specially devoted to him. He
It is plain, from an inspection of the instrument, that W. B. Barnard, Sr., signed before the others. Under the terms of the deed as drawn, certain lands were vested, on certain contingencies, in W. B. Barnard, Sr. The deed was materially altered by putting a. caret between the words “ vested in ” and “ W. B. Barnard, Sr.,” and writing in the margin, in pencil, “West Barnard and Virginia Barnard, the grandchildren of the said W. T. Barnard, and children of said W. B. Barnard, Sr., in equal shares.” -A similar alteration is twice afterwards repeated in the deed. W. B. Barnard, Sr., and S. L. Hall, in attempted execution of the trusts of this instrument, executed certain conveyances, W. B. Barnard, Sr., conveying 160 acres of the land, however, after the filing of this bill. The appellants claim under the trust deed in its altered form, but furnish no explanation of when or how or why or by whom it was altered. It is incredible that Mr. Clark, the lawyer who drew the instrument, left it in the condition it is now in.
The deposition of W- B. Barnard, Sr., was properly suppressed, and what it contains is out of the case. The trust deed was put by W. T. Barnard in the safe of a merchant in Anguila (Mr. McKinny), in a sealed envelope, on which was this indorsement, written by McKinny at W. T. Barnard’s request, and signed by him: “ This package to be delivered to no one, under any circumstances, except to W. T. Barnard or W. B. Barnard.” The end of the envelope had been torn off when it came into the possession of W. H. Barnard, a nephew of W. T. Barnard, November 23, 1891. After some time W. T. Barnard took the package and put it in another envelope, and sealed it, and deposited it in the safe of another merchant in Anguila (Mr. S. Dover), where it was kept till the
W. H. Barnard, it will be observed, for some reason satisfactory to W. T. Barnard, was substituted for W. B. Barnard, Sr. Both McKinny and Dover testify that the deed was not to be delivered to any one except W. T. Barnard until after his death, and that in one case after death of W. T. Barnard it was to be delivered to W. B. Barnard, Sr., and in the other case, after said death, to W. H. Barnard. One testifies that it was, as he understood W. T. Barnard, subject to his control; and both that he could get it at any time. There is no proof as to any delivery by Mrs. Eudora Barnard except the entirely contradictory testimony furnished by differing witnesses as to her declarations. The impression left by this testimony is too vague to be of much value, tending, as we think, to show that she thought she had made a will. From the time the instrument was put in the safe of Dover till the death of W. T. Barnard, so far as shown, it never saw the light, and it was never recorded. A number of judgments had been rendered against W. T. Barnard, and it was not until about the date of the execution of this instrument that they were arranged. These embarrassments out of the way, this paper was made. If- Mrs. Barnard had died without issue, will or deed, W. T. Barnard would have inherited.all her part of the lands attempted to be conveyed by her. In that case he did not care that the deed should be delivered. There were changes in his family and estate, too, in this long interim. Willie had died. W. B. Barnard, £>r., had married again. And now follows what is inex
Was the deed delivered? Of course, if a deed has once'been effectually delivered, no subsequent acts of the. grantors can disparage the title. The mere fact that the trustee signed is not conclusive of delivery any more than the signing by the grantors is conclusive of delivery. If grantors and trustee all sign, but the grantors . retain the possession of. the deed, with the right to control it, not intending to deliver it then, the mere signing by the trustee does not overrule th'eir intention and constitute what they have done a delivery in invitam. Actual, manual tradition of the deed- is not necessary, where the beneficiaries are infants, incapable of assent, and the grant wholly beneficial to them, there being a presumption of acceptance on their part in such cases. But delivery on the part of the grantors in some legal mode must nevertheless be shown, and direct, negative evidence of any such delivery defeats the grant, though a voluntary settlement, no matter how beneficial to infants. Metcalfe v. Brandon, 60 Miss., 685. If one chooses to make a voluntary settlement by deed, he must make a deed, and all that is necessary to a valid deed — that particular mode of conveyance — must be shown. True, a deed once delivered may be kept in the custody of the grantor. Davis v. Williams, 57
But learned counsel for appellants make their chief stand on the law as to what constitutes delivery, and review and discuss many authorities. What is the law’on this subject ? Inquiring now more closely still, what is the crucial test of delivery ? The question is purely one of intent, and it is established beyond controversy, by an overwhelming weight of authority,
The court say: “The court instructed the jury, that, if the deed was in the hands of the depositary, to be delivered to the grantee, either before or after the death of the grantor, without the grantor’s reserving a control over it, then there was a good delivery; but, if the grantor reserved such a full control over the deed during her life, and to the last moment of her life, there was no delivery. If she always had the right to control the destination of the deed, there was not a delivery, but, if she, at any time, relinquished her right in favor of the grantee, there was a delivery; that the question was, whether she always, until her death, continued to have the right to recall the deed if she pleased, and not whether she did in fact recall it. The court was requested to instruct the jury that, if the deed was to remain in the hands of the depositary during the life of the grantor, subject, however, during that time to be revoked by the grantor, and, if not revoked, then to be
“The point of difference betAveen the íavo Avas this: The court held that, in order to make the delivery good, it Avas essential that the grantor should part with her dominion over the deed; that the time when the grantee was to receive it was not material, Avliether at or before the decease of the grantor, but that the delivery to the depositary must be Avithout the power of recall in the grantor; Avhile the defendant contended that if the deed Avas in fact delivered in pursuance of the directions of the grantor, it made no difference that the grantor had reserved the right of recalling the deed at- any time.
“In Parker v. Dustin, 2 Fost. (N. H.), 424, a grantor executed a deed, and delivered it to a third person, with instructions to deliver it to the grantee upon the grantor’s death. He afterwards told the grantee that he had given him the land, and directed him to take possession of it, which the grantee did, and afterwards remained in possession; and it Avas held that it was a question of fact for the jury, upon the evidence, Avhether the grantor deposited the deed with the third person, to be delivered at his decease, Avithout reserving any control over it during his life, and that the deed should be considered as delivered or not, as the finding of the jury might be on the question of his intention —that is to say, if he intended to reserve a control over the deed, it was no delivery, but if he did not so intend, it Avas a delivery.
“In Doe v. Knight, 5 Barn. & C., 671, cited and approved in Wall v. Wall, 30 Miss., 91, the court told the jury that the question was for them to decide, Avhether the delivery to the depositary Avas, under all the circumstances of the case, a parting Avith the possession of the deed, and of the power and control over it, for the benefit of the grantee, and to be delivered to him either in the lifetime of the grantor or after his death,
“In Bank v. Reckless, 5 N. J. Eq., 430, it was held that, to constitute the delivery of a deed, the grantor must part, not only with the possession, but with the control of it, and deprive himself of all right to recall it. In Maynard v. Maynard, 10 Mass., 456, the court in speaking of the deed which was in controversy in that case, and of the grantor, say: ‘ He probably chose to consider it as revocable at all times by himself, in case of any important change in his family or estate. Whatever may have been his views, however, he retained an authority over it. ’ It is the retaining of the authority over it that shows the delivery to have been incomplete. Jackson v. Phipps, 12 Johns., 421; Jackson v. Dunlap, 1 Johns. Cas., 114; Kirk v. Turner, 16 N. C., 14; Gilmore v. Whitesides, Dud. Eq., 14; Hooper v. Ramsbottom, 6 Taunt., 12; Habergham v. Vincent, 2 Ves., Jr., 231. . . . But, so long as a deed is within the control and subject to the authority of the grantor, there is no delivery; and whether in the hands of a third person or in the desk of the grantor is immaterial, since in either case he can destroy it at his pleasure. To make the delivery good and effectual, the power of dominion over the deed must be parted with. Until then the instrument passes nothing. It is merely ambulatory, and gives no title. It is nothing more than a will defectively executed, and is void under the statute. . . . There must be a time when the grantor parts with his dominion over the deed, else it can never have been delivered. So long as it is in the hands of a depositary, subject to be recalled by the grantor at any time, the grantee has no right to it, and can acquire none; and, if the
In Baker v. Haskell, 47 N. H., 479, the defendant claimed under a deed duly acknowledged, and the proof of delivery was this: “When he first introduced the subject of this deed he said that his son, the defendant, who had recently got married, had said to him that he felt as if he ought to make some arrangement of his property, so that he might know what he was to have. He [the grantor] said, ‘ He is my only son, and bears my name, and I always meant to do well by him, but I don’t know how he will use the property. Here is a writing in his favor. It is for him, but I don’t want him to have it in his hands just now. I want you to take it and keep it in your possession till a proper time to produce it. If I keep it in my hands I don’t know who will get hold of it.’ I carried the writing home, and put it in my desk. I did not know what the contents were, and he did not tell me. I kept it until a short time after his death.- I then inclosed it in an envelope and sent it to Joseph Haskell, Jr., the defendant. I think this is the paper.” Pages 479, 480.
The court say (pages 480, 481): “If the grantor continues till his death to have the right to recall the deed from the depositary, there is no delivery.” In Winkley v. Foye, 33 N. H., 171, it was held, in accordance with what we understand to be the general rule, that a party who deposits money with another, to be appropriated for the benefit of a third person, being under no legal obligation so to appropriate it, has a right to counter
No reason is perceived why the same principle should not apply to the deposit of a deed. In the present case there is no evidence of any arrangement between the depositary and the grantee creating any privity between them. On the contrary, it would seem that the grantee never knew of the existence of the deed till after the grantor’s death. The grantor never lost his right to control, in this case, the deed, and could have maintained replevin for it against the depositary after a demand and refusal. But where, as in this case, there is no question of estoppel, it is difficult to see how the grantor’s intention to part with all dominion over the yleed, supposing such intention to have existed, can avail the grantee, if no act has been done which will in law be regarded as carrying out this intention, and as barring his right to recall the deed. If a grantor, after demand and refusal, should bring replevin against a depositary who had had no communication with the grantee, the depositary could .not set up the defense that the grantor, when he gave him the deed, did not retain the right to recall it. The grantor has the right to change his mind and recall the deed at any time before the depositary has entered into an arrangement with the grantee to hold it for him or deliver it to him. The fact that in this instance the grantor did not recall the deed is immaterial. If he had the right to recall it, there was no delivery.
In Johnson v. Farley, 45 N. H., 505, the proof of delivery was this (p. 506): That Edward Emerson, grantor, signed the deed and acknowledged it before him (Benjamin F. Emerson),
Now, curiously and strikingly enough, just that very identical test is the one adopted by this court in Codes v. Simmons, 57 Miss., 202, George, C. J., saying: “The test as to whether a deed has been sufficiently delivered is the right of the grantee to have that specific deed put into his actual possession by whomsoever may hold it, and not merely to have a deed made in pursuance of a pre-existing equity. Whenever he has this right to a specific deed already drawn up, the deed has been effectually delivered, and the title passed.” But, never till then, the New Hampshire court says; and this right he can only have against a depositary when the depositary holds for him as his agent. In this case, as in Kane v. Mackin, 9 Smed. & M., 392, the grantor was nominal (a commissioner in one case, a sheriff in the other), and the court very properly alluded to the marked difference, as to the question of intent, between a nominal and a real grantor. What cares a sheriff or commissioner as to who purchases ? The owner, parting with the property that was his home and world, destines it with jealous care to the special. ones intended. In Exum v. Canty, 34 Miss., 533, which was a case where the deed was recorded (p. 536, top), and delivered to the beneficiary (p. 537), who then knew its contents, the court say (the contest being, as in Wall v. Wall, 30 Miss., 91, whether it was a will or a deed): “Such an instrument takes effect upon its execution and delivery, as to the interest of the beneficiaries, and concludes the grantor of-the right of further disposition.” Here the same test is recognized. It must conclude the grantor of the right of further disposition.
In Harkreader v. Clayton, 56 Miss., 390, the court announces, with emphasis, the same doctrine, saying: “Thefinal and complete act which makes a deed effectual is delivery. Whilst no specific formalities áre necessary, the grantor must
Some point is attempted to be made in this case out of the
“There also appears in evidence the following letter, written by defendant, Lizzie Elson and mailed by' her to complainant, Alice M. Tuck: ‘Peoria, Ill., Feb. 28, 1894. Dear Alice— Your letter was received to-day noon. ... I have had that deed in my possession for some time. Father gave it to me, and told me to keep it, and, if he never called for it (which he never did), that at his death I must have it put on record. He saw the deed shortly before he went down to Jim’s. He was well then, and it was still his desire that I should keep the deed. It is not likely he would change his mind in so short a time. Lizzie.’ Such a state of facts is not at all consistent with the claim that Col. Wilson delivered this deed to the defendants. The mere placing of the deed in the hands of one of the grantees did not, of itself, necessarily constitute a delivery. In such a case, the inquiry is, What was the intention of the parties at the time ? And that intention, when ascertained, must govern. Jordan v. Davis, 108 Ill., 336; Bovee v. Hinde, 135 Ill., 137, s.c. 25 N. E., 694; Oliver v. Oliver, 149 Ill., 542, s.c. 36 N. E., 955. It seems clear that this deed was placed by her father in the hands of Lizzie-Elson with the mutual understanding that if he at any time desired to withdraw it she should return it to him, but that ‘ if he never called for it ’ she should, at his death, have it recorded. In other words, there was no intention at the time to convey a present, absolute title to the defendants, but .the intention was that the deed should take
Of course, it is not intended, in anything we have said as to-the-crucial test of delivery, to declare that the mere fact that the grantor, after a delivery once effectually made to a grantee or a depositary, subsequently gets physical possession of the deed, at all affects the validity of the delivery. Once effectually delivered, always effectually delivered, is the law. But supposing a contest as between grantor and grantee, or grantor and depositary, as to the possession of the deed, the test of delivery and of the right of possession is as stated. And Washburne, -summing up the law in England and America, says (3 Washb. Real Prop., p. 285, sec. 20): “ So long as the grantor retains the legal control of the instrument, the title cannot pass, any more than if he had not signed the deed. ’ ’ Page 283: “In the first place, the grantor must give up con
Let it always be kept in mind that W. B. Barnard’s deposition is out of the case. Counsel for appellants, however, cited, as sustaining the contrary view, the following much misunderstood two authorities, which, examination shows, support our view squarely: Souverbye v. Arden, 1 Johns. Ch., 240, and Doe v. Knight, 5 Barn. & C., 671. James Arden and Eliza Arden had two daughters — Eliza, who married Boquet, and
We concur with the learned chancellor that the deed was ■never delivered, and affirm his decree in that regard. We think the chancellor erred, however, in the amount of the rent, which should not have exceeded, on the proof, $1, 500, and in rendering any other than a mere personal decree for that. It should not have been declared a special lien on the lands named. The decree is affirmed in all things except in these two features, and as to them it is reversed, and a mere personal decree will be entered here for $1,500 rent. So ordered.
APPLICATION TO AMEND DECREE AND MANDATE, FIRST APPEAL.
' After the delivery of the foregoing opinion and the entry of the decree of the supreme court in accordance thereto, the ap
delivered the opinion of the court on application to amend decree and mandate, first appeal.
This is an application to have the decree and mandate in this case (the mandate not having gone down to the lower court, and the record still being in this court) amended so as to recite that our decree is without prejudice to any right appellants may have to apply to the court below for leave to file a bill of review herein, based on newly discovered evidence. The settled rule of practice is that an application for leave to file a bill of review must be made to the court of original jurisdiction, where the action was begun, and whose decree is sought to be reviewed. 3 Enc. PI. &Prae., 573-575, and notes. A distinction has sometimes been made (where an appeal has been prosecuted, and the appellate court has rendered a decree) between cases affirmed and reversed, as to whether the application should be made to the appellate court or the trial court, it being said that where the appellate court has reversed and remanded the case, application should be made to the appellate court for leave to file the bill of review in the trial court, since otherwise such an application to the trial court would be to review, not its own decree, but the decree of the appellate court, which proceeding, it is said, would be unseemly. Kimberly v. Arms (C. C.), 40 Fed., at page 554; Southard v. Russell, 16 How., 547, s.c. 14 L. Ed. 1052. If this were the true rule, it would not apply here, since here the decree was affirmed. But the true distinction is not as between decrees affirmed and reversed, but between the bills of review based on alleged error of law apparent on the record, and those based on newly discovered evidence. In the former case no bill of
The supreme court of Massachusetts, in Gale v. Nickerson, 144 Mass., 418, s.c. 11 N. E., 719, emphatically approve the rule we have announced, and which is announced in Putnam v. Clark, supra, saying: “By entertaining a motion for a new trial the probate court does not overrule the decision of this court. It decides that, by reason of newly discovered evidence, a new case is made out, which this court has never passed upon.” Say the court, in Putnam v. Clark, supra: “This is an application to this court, by petition, for leave to file a bill of review, on the ground of newly discovered facts, in a cause which was decided herein in 1880, on appeal from the final decree of the chancellor dismissing the complainant’s bill. By the decree of this court that decree was affirmed and the record remitted. There is, therefore, no record here now. In my judgment the application cannot be entertained, in this court, but must be made in the court of chancery. It is urged, however, that in Jewett v. Dringer, 31 N. J. Eq., 586, where such an application, on the ground of fraud and newly discovered evidence, was made to that court after reversal of the decree on appeal, it was held thát it would not entertain an application to file a bill of review to revise its decision after that de
This court exercises appellate, not original, jurisdiction. It follows that this court cannot entertain an application for leave to file the bill of review herein. To do that we would have to pass on the light to file the bill, going into the facts shown by the affidavits. That question — -whether
SECOND HEARING, SECOND APPEAL.
When the case was remanded, the complainants moved the chancery court, under code 1892, § 53, for a decree for the rents of the land in controversy, pending the appeal' to the supreme court, against defendants and the sureties on their appeal bond. On the hearing of this motion, defendants offered evidence to show that in the year 1899 W. H. Barnard, who was administrator of the estate of Eudora J. Barnard, deceased, was in possession of said lands in dispute, and collected the rents for the year 1899 for the purpose of applying the same to the payment of the debts duly probated against the estate of the said Eudora J. Barnard, deceased, and that said decedent left personal estate to the amount of $400, and that debts had been probated against said estate to the amount .of $2,700, exclusive of interest, which debts had not been paid at the beginning of the year 1899, and that the rents of the year 1899 had been applied to the payment of said debts, pro tanto, by
Miller,• Smith do Hirsh, II. J. Mclaurin and Dabney da McGdJbe, for appellants.
The decree for rents appealed from is based upon the theory that as the original bill averred that the rents and profits of the lands were worth $1,500 per annum, and the averment was not denied by the answer, defendants could make no question but that said rental value remained forever the same. Under code 1892, § 53, it was the duty of the court below to ascertain by competent proof the value of the use and occupation of the lands. Even if defendants be conclusively bound by their fail ure to deny the averment of the bill that the lands were of the annual rental value of $1,500 when the answer was made, yet it does not follow that they have been so valuable ever since. Besides, why should not a court of equity, in granting a decree for the use and occupation of lands, protect the party in possession who has used the rents in paying taxes and other claims which were valid charges on the lands. There is no reason, and the court below erred in refusing to do so. The lands in this case depreciated greatly in rental value after the answer was filed.
Theodore McITnight, for appellees.
No proof whatever, on the part of the appellants, was admissible under the conditions of the pleading at the time of the trial of the motion. The trial stood upon the pleadings and proceedings in the case, with all parties ready for trial, and with no evidence in opposition to the granting of a decree for rents, and with the admitted fact that the lands were worth $1,500 per year and complainants were entitled to recover their share of the rents of said lands, for the time between April 24, 1899, and June 5, 1900, the sum of $1,469.72. Section 53, code of 1892, imposes upon the court the duty of ascertaining the value
The real controversy in this canse, on the former hearing, was as to the title. The circumstances of this case are peculiar. The appellants thought themselves the true owners. Their admission in the pleadings that §1,500 per annum was a reasonable rate for the rent, related to rate alone. It was not an admission that any rent was due, for that was denied by the assertion of title. The appellants said: “We are owners, and owe no rent. If it should turn out that you are owners, we agree that, as the value of the land now stands, §1,500 is, as to rate, a reasonable rate. ’ ’ They were not precluded on this motion, made under § 53 of the Annotated Code of 1892, from showing that the value of the lands was increased or decreased, if in truth there had been any change. If there had been no change, their admission that §1,500 was a reasonable rate is binding on them. If there had been change, the rent should be increased or diminished as the evidence required. And so as to the offer to show that the administrator had actually paid off taxes and debts that were a charge on the land, the §400 personalty having been exhausted, and §2,300 of such debts being alleged to have remained over after such exhaustion of the personalty. If the truth was that the administrator had discharged with the assets of the year 1898 taxes and debts chargeable on the land by law, the appellees cannot take the lands without crediting the rents with such amounts so paid. Justice demands that. And so, if the truth was that Mrs. Eudora J. Barnard was in the use and occupation of two-thirds of certain lands, the property of appellants, in 1895-96-97, then appellees, claiming title under her, must stand chargeable with the value of such use and occupation, as an equitable set-off against their demand for rents of the other third, and of other lands coming to them through Mrs. Barnard, under the very exceptional circumstances of this case. The court, in passing upon this motion, should, with all the parties before it, so deal with the situation as to effectuate final and complete
The decree is reversed and cause remanded, to be proceeded 'with in accordance %oith this opinion.
After the cause reached the court b*dow, the complainant, Sarah L. Hall, made application there to íi¡e a bill of review, based on newly discovered evidence. The application was denied by the chancery court, and the applicants appealed therefrom to the supreme court, but the decree denying the leave was affirmed. The supreme’court did not deliver any written opinion on this affirmance.