33 Tenn. 186 | Tenn. | 1853
Lead Opinion
delivered the opinion of the court.
It appears from the bill that Dr. Gerard Troost died intestate at Nashville, Aug. 15th, 1850, and that plaintiff was appointed administrator of his estate. It consists of funds, negro- slaves and other effects. The bill then states that intestate died possessed of a very valuable collection of natural and scientific specimens, with* manuscript catalogues of the same; also of a large, varied, and valuable library of scientific and literary' books; an extensive assortment of engravings and maps, together with suitable and costly presses and furniture, wherein the same were kept. That the sai4 intestate spent most of his life in collecting this cabinet, and that it is estimated to be of the value of fifteen or twenty thousand dollars.
That on the 22nd of June,- 1840, the intestate executed to his two children, Lewis Troost and Caroline
The answers of defendants admit, substantially, the facts stated in the bill, except that the donees say that the cabinet, library and articles named in said deed of gift, were, in legal effect, delivered to them; and that they permitted the same to remain with Gerard Troost as a depository for them; and except that Mary Troost denies any knowledge of the execution of the deed of gift, and insists that the original be produced. It appears from the deposition of Return J. Meigs that the cabinet and library were kept by Doctor Troost in a building called the Laboratory, on college hill, and continued there until his death, without any change of the possession after the execution of said deed. A few days before his death, Dr. Troost conversed with Mr. Meigs about this gift, and said, “If the cabinet and library were to be disposed of now he would make the same disposition of them as he had already made;
Counsel for the plaintiff insist that the deed was void, because the cabinet and library were not, at the time, delivered to the donees.
It is true, that delivery is essential to the validity of a parol gift of a chattel or chose in action, whether it be a gift inter vwos or causa mortis/ and without delivery and a transfer of the possession, the title does not pass to the donee. The delivery must be according to the nature of the thing, as the actual delivery of a sum of money, the delivery of the key of a trunk, of a" room, and the like. The effect of a valid delivery is to place the subject of the gift under the control and dominion of the donee, and his title and right to possession become absolute and irrevocable. Noble vs. Smith, 2 Johns. R., 55. Ewing vs. Ewing, 2 Leigh R., 310. Bunn, vs. Markbram, 2 Taunt, 224. 2 Bl. Com., 441. 2 Kent Com., 438. But a gift by deed is valid at the common law though there be no actual delivery of the thing given. Irons vs. Smallprew, 2 B. & Ald., 552. Cains vs. Marley, 2 Yerg. R., 582.
The execution and delivery of the deed are considered to be equivalent to the delivery of the subject of
We have seen, however, that Mary Troost, one of the defendants, does not admit the execution of the deed; which objection implies that it was not signed, sealed and delivered by the donor.
It is true that delivery is essential to the execution of a deed, but it need not be formal and manual, if the intention to accept the deed manifestly appear. 4 Kent Com., 456. Martin vs. Ramsey, 5 Humph. R., 350. The delivery may be inferred from other facts; and therefore, the possession by the obligee of a deed regularly executed, is prima faeie evidence of its delivery. 4 Peck, 520. 14 Peters, 327. If a deed be made and delivered to the register for registry, without more, that is no delivery; but if the grantor __ directed it to be recorded, or subsequently assented to
Now, the deed in question appears to be regularly executed. It was acknowledged by the donor, and registered. A few days before his death he recognized its existence and declared his purpose that it take full effect. The donees assent, as it seems, to the deed, and claim the subject of the gift under it. From these facts we may infer the delivery and acceptance, in absence of any proof of a formal delivery.
As to the objection that the original was not produced, we do not think that the rule as to secondary evidence applies to the case. The plaintiff represents the title of his intestate, and the contest is properly between him and the donees who claim under the deed. He admits its execution, exhibits a copy, and insists that it is not valid, because the subject of the gift was not actually delivered. In this view the production of the original ■ was not necessary. We have considered the case, therefore, without reference to this last objection, which, from any thing that now appears, is merely formal. But, if in point of fact, it be founded in merit, the party making it will not be precluded by the present judgment.
We consider that the gift was valid, and that it had the effect to vest in the donees the title to the property named in the deed.
The decree of the Chancellor will be reversed.
Rehearing
delivered the opinion of the court.
. We have reconsidered this case; and upon the facts as they now appear, are satisfied with the opinion that has been delivered.
A gift by ¡pa/ról is not valid unless the subject of the gift be delivered to the donee. But a gift by deed is valid at the common law, though there be no actual delivery of the thing given. • We have stated also, the general doctrine as to what shall be held a constructive delivery of a deed, and to that we adhere. But it is to be observed that the bill raises no question of contest as to the execution and delivery of the deed; on the contrary it admits it and exhibits a copy from the registry. And the question in contest, raised by the bill and by counsel in debate, was mainly whether the gift was valid without delivery of possession?
The answer of Mary Troost denies any knowledge of the execution of the deed of gift, and requires that the original be produced. This is the matter now relied upon in the petition for rehearing; as if the case in judgment before us need not be stated in the bill, but only in the answer of one of the defendants.
Now, if the case be an interpleader, “ the plaintiff should state his own rights and thereby - negative any interest in the thing in controversy; and he should also state the several claims of the opposing parties.” Story Eq. PL, § 292, and cases. The bill must present a
Considering that the ' execution and delivery of the deed were not fully and distinctly in issue, and that its validity is denied by Mary Troost, we have thought it proper that the decree be so made that she be not concluded by the present judgment.
As the case now appears, we consider that the gift is valid; but without giving any final judgment, the case will be remanded, with leave to amend the pleadings, and with leave to Mary Troost to institute a proceeding in the nature of a cross-bill, if she think proper; so that the validity of the deed may be fairly tested upon the facts as they may appear.
Decree reversed and cause remanded.