58 Wash. 383 | Wash. | 1910
Lead Opinion
James C. Lamar and Joseph Lamar, his brother, lived for many years in Walla Walla county, where they accumulated real and personal property of considerable value, which they held in common. The brothers never married, but lived together in bachelor quarters, at a place called Lamar Station. It appears that James C. Lamar, the elder brother, was strongly opposed to making a testamentary disposition of his property, fearing that his will would be contested and overthrown after his death. To avoid such a contingency, the two brothers had an agreement or understanding between themselves that whichever one should die first would convey his interest in the common property to the survivor before the end came. On the 4th day of October, 1901, James C. Lamar was taken to St. Mary’s hospital at Walla Walla, suffering from some malady the nature of which is not disclosed by the record.
On the 10th day of October, 1901, he executed a deed of the property now in controversy in favor of his brother Joseph Lamar, pursuant to the agreement above referred to, and thereafter died intestate on the 11th day of November following. On the 24th day of October, 1907, the plaintiff was appointed administrator of his estate, and by this action sought to recover the property described in the above deed, from the grantees of Joseph Lamar. From a judgment in favor of the plaintiff, this appeal is prosecuted.
The rights of creditors are not involved, and if the deed of October 10, 1901, was valid as between the parties, the judgment of the court below is erroneous and must be reversed. The validity of that deed is challenged on two grounds: (1) because of mental incapacity of the grantor at the time of its execution, and (2) for want of a valid delivery. At the
The evidence relied upon to show a nondelivery is the following: Baumeister testified:
“A. I just went into the room and afterwards I got social with him for perhaps a few minutes, had a social chat with him, and then I questioned him regarding that deed and what Joe had told me, and he admitted that that was the case and that he was ready to sign and willing to sign, and he did sign. Q. And that is all there was to it? A. Yes; of course, he said that Joe and he had had an understanding to that effect, and he wanted Joe to have the interest in it in case he passed on, to keep him from being annoyed by the heirs in the East.”
Mrs. DeGruchy, a witness for the respondent, testified:
“A. I left the room, and after awhile my attention was called that Mr. Baumeister was going, and I went to see if*387 their business was concluded, and I heard Mr. Lamar say, as best he could, he spoke up and said, ‘Take care of the deed until I shall ask you for it, which I will as soon as I get well.’ And Mr. Baumeister said: ‘Very well, James, I will take care of it.’ ”
Also:
“Q. I will ask you, Mrs. DeGruchy, speaking of the conversation that you had with James C. Lamar, how soon was that after Mr. Baumeister went out of the room? A. One of the sisters came in and gave him a stimulant, and after the medicine had comforted him, then he told me that he had deeded his land to Joseph after his life, but not until I am dead; and I said, ‘What then, James?’ ‘Then,’ he said, ‘it must go back to Missouri to the poorer portion of my relatives.’ ”
A special interrogatory was submitted to the jury, embodying the substance of the testimony of the last named witness first above mentioned, but the jury were unable to agree upon an answer. There is nothing whatever in the testimony of the witness Baumeister tending to defeat the operation of the deed. The mere statement of the grantor that he wanted his brother to have his interest in the property in case he passed on, to keep him from being annoyed by the heirs in the East, has no tendency, to establish a nondelivery of the deed or to overcome the presumption arising from its possession by the grantee. The conversation referred to the agreement between the brothers and not to the delivery of the deed. If, therefore, the deed was not delivered, the fact of nondelivery must rest on the testimony of Mrs. DeGruchy, and if her testimony is sufficient, if believed, to show a nondelivery, the case must be remanded for a new trial, because the special finding of the jury shows that the general verdict was not based on her testimony or on the statements she attributed to the deceased grantor, and there is no other theory upon which the judgment can be sustained. If, on the other hand, the testimony of this witness was incompetent or is insufficient as a matter of law to show a non
In Gilbert v. North American Fire Ins. Co., 23 Wend. 44, approved by this court in Richmond v. Morford, supra, the court said:
“If the grantor do 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 third person as an escrow, to be delivered at the proper time. If he deliver it as his deed to the grantee, it will operate immediately, and without any reference to the performance of the condition, although such a result may be contrary to the express stipulation of the parties at the time of the delivery. This is one of the cases in which the law fails to give effect to the honest intention of the parties, for the reason that they have not adopted the proper legal means of accomplishing their object.”
See, also, Dyer v. Skadan, 128 Mich. 348, 87 N. W. 277, 92 Am. St. 461; Darling v. Butler, 45 Fed. 332, 10 L. R. A. 469; Duncan v. Pope, 47 Ga. 445; Ordinary v. Thatcher, 41 N. J. L. 403, 32 Am. Rep. 225; Hubbard v. Greeley, 84 Me. 340, 24 Atl. 799, 17 L. R. A. 511. And delivery to an agent designated or appointed by the grantee to receive the deed is a delivery to his principal. Ordinary v. Thatcher, and Hubbard v. Greeley, supra.
Under these authorities it is extremely doubtful whether a grantor may make the grantee the depositary of his deed for any purpose or, if he does, whether the law will not give full effect to the deed contrary to his intentions. But, if we concede that the testimony of this witness was sufficient to defeat the deed, if believed, it is not the clear, convincing proof that the law exacts in such cases. The jury was not
“When a deed, duly executed, is found in the hands of a grantee, there is a strong implication that it has been delivered, and only clear and convincing evidence can overcome the presumption. Otherwise, titles could be easily defeated, and no one could be regarded as being secure in the ownership of the land. It cannot be that a grantor may assail a conveyance fifteen or twenty years after a deed has been made, and recover the land by merely swearing he never delivered the deed. The unsupported evidence of a grantor surely cannot be permitted to have such effect, especially when the evidence of such a grantor is, in many material matters, contradicted, and he seems to act on a low moral plane. To so hold would render all titles insecure, and would be disastrous in the extreme. Any system of jurisprudence, adopting rules for the attainment of justice, can never sanction a rule fraught with such unjust and iniquitous results.”
Believing, therefore, that the deed under which the appellants claim is valid in all respects, the judgment of the court below must be reversed, with directions to dismiss the action. It may be that the law does violence to the immediate intentions of the grantor in this case, but his ultimate intentions are given sway. Reversed and remanded.
Dissenting Opinion
(dissenting)—I dissent. As suggested in the majority opinion, the main questions involved in this appeal are, (1) the súfficiency of the evidence to establish mental
Where there is evidence tending to support a given contention, its weight is for the jury. James C. Lamar entered the hospital October 4; the deed was executed October 10, and he died November 11. During all this time he was a very sick man, and a number of persons who saw him during that time gave their opinion as to his mental capacity, based upon what they then and there observed. This evidence was received without any objection as to its competency or the competency of the witnesses, and the jury had a right to consider it. I refer to some of this evidence :
“He didn’t have any expression in his face at all; he was too weak; he didn’t care for anything; ... he was unconcerned; he didn’t pay any attention to any one; ... he just looked as if he was about through with; he didn’t care to talk; you could see that he was giving out; he was not capable of attending to any business; ... he didn’t have any use of his body; he was too weak to raise his hands; he was just a weak, worn-out man; ... he was very weak; he seemed to be prostrated and languid; he seemed to be growing weak, and he didn’t seem to be in his right mind, and he didn’t seem like himself some way; ... it seemed that his mind wandered, and he didn’t seem his old self at all; it was difficult for him to talk; his speech seemed to be thick; he couldn’t get his voice; he didn’t seem to have control of his voice; ... he seemed to have a vacant expression; he didn’t seem to be natural; ... he was growing weaker all the time; he was*391 swollen all over; his bowels were awfully swollen; he couldn’t stand the cover on his bowels; his feet, hands and arms were swollen; his limbs were helpless; ... he would be lying there apparently unconscious, couldn’t lift his hands to his mouth, couldn’t handle a spoon, couldn’t get anything out of him. It does not seem that he was ever capable of attending to business; his mind was perfectly blank; could not get anything out of him; don’t know whether his mind wandered or not; seemed to be blank; he lay with his eyes closed and, when he looked out of them, they were wild.”
Other witnesses gave it as their opinion that he was capable of understanding and appreciating what was going on. With such evidence submitted to the jury under proper instructions, I cannot say there was no substantial evidence to justify the verdict. It is true that the evidence, outside of the opinions given, is largely of his physical condition; but there was sufficient to justify the jury in finding that his mind was in such a feeble condition from his bodily infirmities that he had no understanding or appreciation of the character and extent of his act at the time of the signing of the deed.
The second question submitted to the jury was as to the delivery of the deed. To substantiate this contention, respondent relied mainly upon the testimony of Mrs. DeGruchy, who testified that she came to Mr. Lamar’s room just as Mr. Baumeister, who had brought the deed to the hospital and taken Mr. Lamar’s acknowledgment to it, was leaving, and she heard Mr. Lamar say: “Take care of the deed until I shall ask you for it, which I will as soon as I get well,” and Mr. Baumeister sai'd: “Very well, James, I will take care of it.” If the jury believed this testimony, it is apparent to my mind there was no delivery of the deed. Mr. Baumeister does not anywhere in his testimony specifically deny this testimony of Mrs. DeGruchy, although he does inferentially by detailing all the conversation he had with Mr. Lamar, which does not include what Mrs. DeGruchy testified to having heard. He says:
*392 “I just went into the room and afterwards I got social with him for perhaps a few minutes—had a social chat with him, and then I questioned him regarding that deed and what Joe had told me, and he admitted that that was the case, and that he was ready to sign and willing to sign, and he did sign. Question: And that is all there was to it? Answer: Yes. Of course, he said that Joe and he had had an understanding to that effect, and he wanted Joe to have the interest in it in case he passed on, to keep him from being annoyed by the heirs in the East.”
Mrs. DeGruchy also testified that she was in the room just prior to Mr. Baumeister’s coming in; while Mr. Blanchard, a witness to the deed, says he was there before and after its signing, and there was no one else present except Baumeister; that he did not hear what was said, as he was hard of hearing ; all that he heard was Mr. Lamar asked him to sign the deed as a witness. Baumeister also says Blanchard was the only other person present at the time. The jury was requested to make a special finding, covering this phase, and instructed to answer “Yes” or “No.” The finding submitted to the jury was as follows:
“Question: Did James C. Lamar, at the time he gave the deed in question to Max Baumeister, say to Baumeister, ‘Take care of the deed until I shall ask you for it, which I will as soon as I get well;’ or words to that effect; and did Max Baumeister there say to James Lamar, ‘Very well, I will take care of it and you can have it when you want it,’ or words to that effect? Answer: We, the jury, cannot agree to answer the above question by ‘Yes’- or ‘No.’ ”
It is, therefore, impossible to say.what the belief of the jury was as to that conversation; whether they meant by their answer that they were divided, or whether there was some qualification. They did not answer it, and hence it can have no bearing one way or the other. It is difficult to see what effect it could have had upon the general verdict, in case they had answered it. It was by no means a special verdict or finding of any ultimate fact in the case; it was simply
“However natural the curiosity parties may have to know the precise course of reasoning by which jurors arrive at verdicts either for or against them, they have no right, under guise of submitting questions of fact to be found specially by the jury, to require them to give their views upon each item of evidence and thus practically subject them to a cross-examination as to the entire case.” Chicago & N. W. R. Co. v. Dunleavy, 129 Ill. 132, 145, 22 N. E. 15.
“It is the controlling fact or facts that should be ascertained by the special finding and not the testimony establishing these facts.” Adams’ Adm’r. v. Louisville & N. R. Co., 82 Ky. 603.
I cannot, therefore, hold, as contended for by appellants, that the failure of the jury to answer this interrogatory in the affirmative should be taken as a finding on their part that James C. Lamar and Max Baumeister did not have the conversation attributed to them by Mrs. DeGruchy; nor, as contended by the majority, that the verdict was not based upon her testimony. The general verdict is susceptible of. a finding that it did occur, and showed a plain purpose and intent on the part of James C. Lamar that the deed was not then to be delivered'to Joseph Lamar, but was to be kept subject to his control.
It needs no citation of authority to establish the law to be that there is no delivery of a deed until the grantor has so dealt with it as to lose control and dominion over it. There can be no delivery until there is a surrender of possession by the grantor, either absolute or conditional; absolutely, if the effect of the deed is to be immediate and the title to pass; conditionally, if the operation of the deed is to be postponed or made dependent on the happening of some subsequent
This evidence, coupled with the fact that five days after the death of James C. Lamar this deed was filed for record at the request of Baumeister, was a circumstance from which the jury were justified in believing that James C. Lamar never intended to surrender the control of that deed, nor to part with the title to his property until his death; and that his very purpose in making the deed was to have it take the place of a will. This view is strengthened by the testimony of Harvey Shaw, a witness for appellant, who testified that he had a conversation with J ames C. Lamar, in which he told him “he had better make up his mind about his property, and he (Lamar) said that this man Senator Tilden made a will, and they broke it, and it is of no use for a Missourian like me to make a will. As far as the property was concerned he said that, if he died first, he wanted Joe to have it, and that Joe could settle with them Missourians.”
John Hoffman, another witness for appellants, testified to talking with James C. Lamar about making a will, in which conversation Lamar said: “That is no way to do; that is not the way I am going to do; I am going to give a
The judgment should be affirmed.
