19 Barb. 243 | N.Y. Sup. Ct. | 1855
By the Court,
Action to recover possession of land. Hannah Bacon, who died in July, 1847, was seised in fee of the premises, and the plaintiff claims through a title, al* leged to be derived by deed from Hannah Bacon, under the fol
The delivery of a deed is essential to its due execution, and it takes effect only from its delivery. (4 Kent’s Com. 454.) The sole question presented in this case is, was the deed, to Mary Anguish, delivered ? The plaintiff claims that the delivery to Dr. Thomas, under the circumstances, was a sufficient delivery to the grantee. It will be proper to examine some of the cases.
It is not necessary that the deed be actually delivered to the
In Ruggles v. Lawson, (13 John. 285,) the grantor delivered deeds, in which certain of his children were respectively named grantees, to a third person, directing such person, in case he, the grantor, should die before making his will, to deliver the deeds to his children, respectively. The grantor died before the will could' be prepared, and soon after his death the person entrusted with the deeds delivered them to the grantees, respectively. It was held that the deeds took effect from the first delivery. In Goodell v. Pierce, (2 Hill, 659,) the grantor directed the person to whom he delivered the deed to retain it during the grantor’s life, and in case of his death to deliver it to some person, to be kept for the grantee. • The grantor died, and the deed was delivered as he had directed, &c., and it was held by the court that it was effectual to transfer title. In Tooley v. Dibble, (2 Hill, 641,) the instructions were, to deliver the deed to the grantee after the grantor’s death, but not to deliver it during the grantor’s life, unless both he and the grantee came for it.. The deed was delivered after the death of the grantor, and the court held that the grantee took title by relation from the time the deed was delivered to the agent or depository. In Souverbye v. Arden, (1 John. Ch. R. 240,) the chancellor found as a fact, from the evidence, that the deed was delivered. Subsequently it was in the possession of the grantor, and it was held that the subsequent custody of the deed by the grantor did not destroy the effect of the delivery. This case has no application
It will be noticed that in all the above cases no control was retained by the grantor over the delivery of the deed to the grantee. An event or condition was specified upon which the delivery was to depend, and when that event happened, or the condition was performed, the deed was delivered. And I think the authorities show that when the event specified is the death of the grantor, and the deed is delivered after the death, the grantee is deemed to take title by relation at the time the deed was delivered by the grantor to the third person. In the case we a're considering the delivery to Dr. Thomas was qualified. The grantor was aged and very ill, and expected to die of her then sickness. Under these circumstances she caused the deeds to be prepared, signed them, ancknowledged them and handed them to Thomas, instructing him to deliver them to the grantees respectively, after her death, adding, at the same time, “ if I recover frojn my present sickness, I intend to retain the right to control the property myself as long as I live.” She recovered and lived nearly five years, and soon after her recovery she received back the deeds from Dr. Thomas, and never delivered the deed to Mary Anguish; but Mary obtained possession of it after her death. It seems to me that this case is clearly distinguishable in principle from the cases cited by the plaintiff’s counsel. When she authorized Thomas to deliver the deeds after her death to the grantees, she had reference to her death from her then sickness, as is clear from her avowed intent, in case she should recover, to retain the right to control the property. At
Bowen, Marvin and Greene, Justices.]