324 Mass. 316 | Mass. | 1949
This is a petition in equity in which the petitioner, formerly the husband of the respondent, seeks
The judge found that the parties were married in 1932 and have one child, a daughter. At some time domestic trouble developed. On September 5, 1940, while living apart from his wife, the petitioner purchased the real estate in question for $6,000, paying for it $600 in cash and giving a purchase money mortgage with the usual amortization provisions for the balance. After the purchase the respondent and the daughter returned to live with the petitioner in the newly purchased house, the family at that time including the petitioner’s mother and his son by a former marriage. The petitioner had owned and operated the Cleveland Taxi Service since 1929, and the house was a convenient place for the location of the business telephone which was connected with a street telephone at the taxi stand. The respondent attended to the telephone calls. Early in 1942 the domestic situation became worse and the petitioner decided to enlist in the navy. In order to do so,
From the evidence it appears that the deed to the Brae-more Road house was drawn by the petitioner’s attorney shortly after the conference of the parties on February 23, 1942, and was sent to the petitioner. The petitioner signed it and left it with his papers or, according to his testimony, “left that there in her care in case anything happened to me she would have it. ... If I was killed in action or lost in action I left the deed there so my family would get the benefit of it.” Q. “Did the giving of the deed have anything to do with the fact you had to show your wife was self supporting? A. Yes, it would have.” The respondent testified that sometime after the petitioner left home she found the deed to the house among the papers of the taxi business and placed it among her own personal papers. The petitioner, after his return, found it and took possession of it. The respondent thereafter demanded its return through her attorney. The petitioner gave it to his attorney who then redelivered it to the respondent. The petitioner testified that it was delivered contrary to the instructions given his attorney. The respondent signed the deed on March 7, 1946, and caused it to be recorded in the registry of deeds on March 25, 1947. The deed is in evidence and bears the signatures of the two parties and an acknowledgment purporting to be that of the petitioner taken by his attorney, as notary public, under date of March 7, 1946. The petitioner testified that he never acknowledged it.
After March 13, 1942, the respondent operated the taxi business and from the proceeds supported herself and daughter, paid the mortgage interest, insurance and taxes on the house, $1,212.06 on the principal of the mortgage, and the insurance and excise taxes on the taxicabs. She gradually replaced the seven taxicabs with new taxicabs, which she had registered in her own name. She also paid for repairs on the house, for an oil burner installed therein, and, with one exception, all premiums on life insurance policies of her
The principal matter for decision is whether the judge was correct in concluding, as is implied from the decree, that title to the real estate and personal property of the petitioner vested in the respondent.
The written proposal by the petitioner for a transfer to his wife of a substantial portion of his property appears to have been intended by him as a basis for a settlement of their
Transfer of title to either real' or personal property by way of gift is not effected merely by an expression of intent to make a gift at some time in the future. There must be a completely executed transfer. Simpkins v. Old Colony Trust Co. 254 Mass. 576, 581. So far as the Braemore Road property is concerned, the petitioner executed a deed of it to his wife, and either gave it to her or left it with his papers where she could later find it. It is unnecessary to determine whether there was delivery of the deed before March, 1946, when it was delivered to her by the petitioner’s attorney who could have been found authorized to make such delivery. Title in any event did not pass until the deed was recorded on March 25, 1947. G. L. (Ter. Ed.) c. 209, § 3. The only doubt cast upon the effectiveness of the deed to convey title when so recorded arises from the contention of the petitioner that no evidence was introduced by the respondent to prove that the deed was acknowledged. The deed, however, bears the certificate of acknowledgment of a notary public who at the time was acting as the petitioner’s attorney. The burden was on the petitioner to prove that the deed was ineffective to pass title and, although he testified that he never acknowledged the deed, the judge could disbelieve him and find proper acknowledgment from the evidence of the certificate alone. In McOuatt v. McOuatt, 320 Mass. 410, 413, it was said, “The certificate of acknowledgment furnished formal proof of the authenticity of the execution of the instrument when presented for recording.” It “is of evidentiary character” although its “recitals . . . may be contradicted.” In Albany County Savings Bank v. McCarty, 149 N. Y. 71, 83, it was said, “as between the parties, a certificate of acknowledgment, when read in evidence, makes out a prima facie case as strong as if the facts certified had been duly sworn to in open court by a witness, apparently disinterested and worthy of belief. The legal presumption of the proper per
As to the taxi business, there was evidence from which the judge could find that the petitioner intended to give the business as a whole to his wife. The question is whether such intended gift was completed by delivery. That the petitioner believed he had accomplished his purpose is shown by his letters written while in the service. When he left home on March 13, 1942, the respondent took possession of the tangible property consisting of taxicabs, spare parts, office furniture and tools, as well as the records, documents and office papers pertaining to the business. This was done with the approval of the petitioner and in accordance with the understanding of the parties. The judge could infer that -the registration certificates of the taxicabs, the licenses from the police commissioner, and the insurance policies were physically present among the office papers. The bank account was not assigned but a power of attorney was sent to the respondent to enable her to make withdrawals from the account.
“It is a settled principle of the common law that title to personal property having physical existence cannot pass by paroi gift unless there is such delivery of possession to the donee as the nature of the property permits.” Millett v. Temple, 280 Mass. 543, 549. A “policy of life insurance . . . without an assignment, like a chattel may be the subject of a legal gift inter vivas .... It is also settled that evidences of debt, as distinguished from the debt itself, that is, chose in action without writing, may be the subject of a valid gift and as such constitute an equitable assignment of the debt or other obligation. In either case by an unquali
t. „ Decree affirmed.