265 Mass. 265 | Mass. | 1928
This is an appeal from a final decree entered, in favor of the plaintiff, on a bill for the cancellation of a deed as constituting a cloud upon the plaintiff’s title. The case was heard by a judge of the Superior Court who made the following findings of fact, rulings, and order for a decree: “On May 7, 1925, the plaintiff was the owner of premises described in paragraph 3 of this bill. Shortly before this date he consulted one St. Laurent, an undertaker and notary public, concerning the conveyance of said premises, so that he might retain the control and management and income thereof during his life and 'it would go’ to his son, the defendant, upon his death. In consequence of St. Laurent’s advice the plaintiff on May 5,1925, executed and on May 25, 1925, acknowledged the deed (exhibit 2) with quitclaim covenants to the defendant, which he instructed St. Laurent to keep in his safe and deliver to the defendant only upon the plaintiff’s death. Coincidently the defendant was informed of the execution of this deed and the terms of the escrow. On the following day unknown to the plaintiff and without instructions so to do, St. Laurent presented the deed at the registry of deeds for record but without giving mailing instructions. In due time the deed was mailed by the register of deeds to the defendant grantee, who retained the deed without notice to or knowledge of the plaintiff until July, 1927, when, disputes having arisen between the parties, the defendant attempted to assert the rights of an owner under the conveyance in question, whereupon the plaintiff brought the present bill. . . . Let a decree enter adjudicating the deed now recorded in Essex south district registry of deeds, book 2369, page 575, a cloud on plaintiff’s title thereto, ordering the same be cancelled, and further ordering the defendant to execute and deliver to the plaintiff a conveyance of the same, with quitclaim covenants.”
The evidence is not reported. The findings made, not
It was said by W. Allen, J., in Hale v. Joslin, 134 Mass. 310, at page 312 (a case in which a similar question was presented), “It [the deed] was in the hands of Whitney as a depositary for the grantor, and not as agent or trustee for the grantee.” The findings of the trial judge showed that there was no effectual or valid delivery of the deed to the defendant, and no intention of passing a present interest in it by the plaintiff, and that the title was not to vest in the defendant until the grantor’s death. It follows that the transaction was an attempt to make a testamentary disposition of the real estate and was in violation of the statute of wills. G. L. c. 191. Hale v. Joslin, supra. Tewksbury v. Tewskbury, 222 Mass. 595. Smith v. Thayer, 234 Mass. 214. See also Wheelwright v. Wheelwright, 2 Mass. 447, 452; O’Kelly v. O’Kelly, 8 Met. 436; Daggett v. Daggett, 143 Mass. 516.
The making and delivery of the deed to St. Laurent were in the nature of a testamentary act; such act could be re-
Decree affirmed with costs.