23 Colo. 174 | Colo. | 1896
delivered the opinion of the court.
The foregoing statement sufficiently presents the material averments of the complaint upon which appellant predicates his right to the relief asked; his contention being that the deed referred to in the stipulation was never delivered to the grantee, George B. Stimpson, so as to become an operative transfer to him of Barnard’s interest in the property, and that the written contract entered into on the 15th day of December, 1890, is executory, and subject to rescission at any time for the nonperformance of its covenants by Stimpson or his
“Now, therefore, the said Norman R. Barnard, in consideration * * * doth hereby consent to sever himself from the said copartnership with the said George B. Stimpson, and doth hereby agree to grant, assign, transfer, set over and convey unto said George B. Stimpson',' his heirs, and assigns, forever, by good and sufficient deed, executed and delivered contemporaneously with this agreement, all the right, property,” etc.
And again the following:
“ And the said Norman R. Barnard, for himself, his heirs, executors, administrators and assigns, does covenant with the said George B. Stimpson, his heirs and assigns, that he, the said Barnard, shall not release, discharge, sell or convey in any manner whatsoever, any of the goods, debts or other property, real, personal or mixed, hereinbefore mentioned as belonging to the said copartners, or do any act to hinder said Stimpson from receiving and enjoying the same, but will permit the said Stimpson to recover, receive and hold the same absolutely to his own use, without any account to be rendered therefor to said Norman R. Barnard, and that the said Norman R. Barnard, upon request, will do any and all reasonable acts which may be necessary or convenient, to assist said Stimpson to recover and receive the same.”
In addition to this express agreement to transfer and con
It appears from other averments in the complaint that, upon entering into the contract, Stimpson assumed control over and held the property absolutely as his own, exercised acts of ownership over it', and transferred, by a voluntary conveyance, an interest in a portion of the property to his daughter, and by his last will and testament bequeathed all of the remainder to his widow. It also appears that plaintiff did in compliance with his obligation, immediately sever himself from the copartnership, and permit Stimpson to receive and hold the partnership property absolutely, as his individual property; and we think it would be doing violence, not only to the plain import of the language used in the agreement, but to the evident intent of the parties, to construe the delivery therein provided as contemplating any other than one in presentí. What is essential in law to constitute a delivery of a deed has been considered in many of the adjudged cases, and the generally accepted rule is that when, from the acts and agreements of the parties, the intention of the grantor to invest the grantee with the immediate ownership of the property, and of the grantee to accept the same, is manifest, such intent and purpose is sufficient to constitute a constructive delivery of the deed, even though the actual custody thereof remained in the grantor, or some third person.
In Ruckman v. Ruckman, 32 N. J. Eq. 261, the rule is thus concisely stated: “ Whenever it appears that the contract or
The supreme court of Oregon, in the case of Flint v. Phipps, 16 Ore. 437, states the rule thus: “ It is conceded that no particular form of words is necessary to constitute a delivery. ‘It is not necessary’ said Lord, G. J., in Fain v. Smith, 14 Ore. 82, ‘ there should be an actual handing over the instrument, to constitute a delivery. A deed may be delivered by doing something and saying nothing, or by saying something and doing nothing, or it may be by both.’ ” To the same effect are Brown v. Brown, 66 Me. 316; Moore v. Hazelton, 9 Allen, 102; Gould v. Day, 94 U. S. 405.
Under this rule, that which is admitted to have been said and done by Barnard and Stimpson would certainly constitute such a delivery of the deed as would vest the grantee with the title, notwithstanding the fact that at the time of Stimpson’s death, which occurred nearly two years after the admitted execution of the agreement, the deed and agreement were found in the First National Bank of Pueblo, inclosed in a sealed envelope, bearing the indorsement set forth in the stipulation. This circumstance, unexplained, is at most a recognition of the joint ownership of the parties in the documents, which could not have existed if the deed had not been delivered. Without any authority being shown for John H. Mitchell to make such an indorsement, it would be unwarranted, we think, to give to it the force and effect of an escrow that would contradict the express covenant on the part of Barnard to deliver the deed contemporaneously with the execution of the contract, and put it in his power, upon Stimpson’s death, no matter how faithfully he might have complied with every provision of the agreement on his |jart, to prevent the deed from ever taking effect. That Stimpson never contemplated such a contingency is evidenced by his dealings with, and disposition of, the property,
But we do not regard the actual delivery of the deed in question as controlling in this controversy, or as essential to the transfer to Stimpson of Barnard’s equity in the partnership property, since the effect of the contract of dissolution, in and of itself, was to divest Barnard of such equity, and vest it in Stimpson. This contract was duly entered into by the parties on the 15th day of December, 1890, and became mutually obligatory upon each from the date of its execution. The obligation thus imposed upon Barnard was to “grant, assign, transfer, set over and convey * * * by good and sufficient deed, executed and delivered contemporaneously with the agreement,” all his right, property and interest in the partnership property, to George B. Stimpson, who already held the legal title.
A present obligation and duty to convey will be treated, in an equitable proceeding like this, as equivalent to a conveyance, under the maxim that “ equity considers that done which ought to be done.” In discussing this principle and the manner in which equity deals'with executory contracts for the sale of land, Pomeroy, in his work on Equity Jurisprudence, section 368, says:
“ The full significance of the principle that equity regards and treats as done what ought to be done throughout the whole scope of its effects upon equity jurisprudence, is disclosed in the clearest light by the manner in which equity deals with executory contracts for the sale of land. * * * In some respects, and for some purposes, the contract is executory in equity as well as at law; but so far as the interest or estate in the land of the two parties is concerned, it is regarded as executed, and as operating to transfer the estate from the vendor and to vest it in the vendee. By the terms of the contract the land .ought to be conveyed to the vendee, and the purchase price ought to be transferred to the vendor; equity, therefore, regards these as done: the vendee as having acquired the property in the land, and the vendor as
“As the vendee has acquired the full equitable estate— although still wanting the confirmation of the legal title for purposes of security against third persons—he may convey or incumber it; may devise it by will; on his death intestate, it descends to his heirs, and not to his administrators.” * * * Story’s Eq. Jurisprudence, section 790.
Tested by this principle, the agreement under consideration must be treated as fully executed on the part of plaintiff, and as operating to transfer his interest in the property to Stimpson at the time of its execution. It follows that this action cannot be maintained, and the judgment of the court below, dismissing the complaint, must be affirmed.
Affirmed.