199 N.W. 199 | S.D. | 1924
The facts of this case as shown by the evidence are practically without dispute. W- H. Lower in his lifetime decided to make disposition of his land so that in the
“I want you to make out three warranty deeds so as to divide my land among my children and wife so that it will not be necessary to go through court after my death.”
Dixon asked him why 'he did not make a will. To which Lower replied:
“I don’t know anything about a will, and I do not want any monkey business over my estate after my death.”
After the deeds were drawn, -Lower said:
“Dixon, take care of these deeds for me. Keep them in a safe place, and upon my death I want you to immediately record them, and give them to the grantees named in the deeds.”
He further said:
“This is a final disposition of the land, and I expect you to follow my instructions fully in regard to having the deeds recorded after my death.”
After that the deeds were placed in the safety deposit box, where they remained until his death, at which time they were taken from the box by plaintiff and placed, of record. It is contended by appellant that this does not make such showing of delivery as is sufficient under the law to vest title in the grantees in the deeds.
“It has also been said that a delivery may be by acts or words, or by both, or by one without the other. But it is well -settled that several things are necessary to constitute a valid or*460 effective delivery of a deed. One of the essential requisites of a sufficient delivery is that the deed passed beyond the dominion and control of the grantor. Another requisite is the intention of the grantor, and of the person to whom' the deed is delivered, that it shall presently become operative and effectual. The essence of delivery is the intention of the parties. In order to make the delivery valid, it must be manifest that the grantor intended the grantee to become possessed of the estate. It is not essential in all cases that the deed should be delivered into the actual possession of the grantee. It may be delivered to a third person for the benefit of the grantee. * * * ' ■
“If a future control by the grantor is retained over the deed, no estate passes.”
Walter v. Way, 170 Ill. 96, 48 N. E. 421.
In case of Kyle v. Kyle, 175 Iowa, 734, 157 N. W. 284, we find this statement:
Speaking of delivery, “ordinarily.it is the simple transfer of possession of the written instrument from the grantor to the grantee with intent on part of the grantor to convey and on part of the grantee to acquire title to the property described therein. But an actual manual transfer of the paper is not necessary. A delivery may be effected by acts without words, or by words without acts, or by both words and acts, assuming the instrument to have been properly executed [and] ready for delivery.” 8 R. C. L. 995; 18 C. J. 208; Williams v. Kidd, 170 Cal. 631, 151 Pac. 1, Ann. Cas. 1916E, 703; Wortz v. Wortz, 128 Minn. 251, 150 N. W. 809; O’Connor v. McCabe (S. D.) 192 N. W. 370.
From the authorities it would seem that the doctrine that the intention of the grantor as gathered from the facts and circumstances surrounding execution of the deeds is controlling. We believe that the record in this case clearly shows that the intention of Lower at the time he executed the deeds was to divest himself of his title to the land involved. He said: “Dixon, take care of these deeds for me. Keep them in a safe place.” He did not say: “Keep them in my deposit box,” or “Keep them where I can get at them.” While under the instruction Dixon had full authority to keep the deeds anywhere, and if he had so desired could have taken them with him, from a careful study of
“I have already given Roy the equivalent of a quarter section of land,, and for this reason I am not leaving him anything now, but Roy will receive his share in cash of what'is left after my death.”
Roy was his son. Again Lower said to Dixon:
“I do not want you to say anything about these deeds being made out and left with you so that the children will know that I have made final disposition of the land in .their favor.”
We have considered all the assignments of error, and are satisfied that they are without merit.
From this record we are convinced that the judgment and order of the trial court should be, and are, affirmed.
Note. — Reported in 199 N. W. 199. See, Headnote, American Key-Numbered Digest, Deeds, Key-No. 61, 18 C. J. Sec. 114.
On delivery of deed to third person with direction to await grantor’s death, see notes in 54 L. R. A. 865; 9 L. R. A. 317, 38 L. R. A. (N. S.) 942.
On delivery of grant, see Rev. Code 1919; Sec. 524, and annotations Kerr’s Cyc. Code, 1920, Civ. Code, Sec. 1054.