188 Iowa 1081 | Iowa | 1919
Lead Opinion
If this deed' was not delivered, it must be because there was no manual tradition of the paper. The deed in question bears date August 1, 1908. It names appellant as grantee. It reserves a life estate in the grant- or, and was duly acknowledged. When the will of grantor was being prepared, the scrivener inquired of him, “What about the property on the south side of the square, — what are you going to do about that?” Testator answered, “Why, I have already deeded that to Anna Eckles.” He had a box in a bank. After his death, the box was opened; the executor, appellee, found said deed therein. It was enclosed in an envelope, on which was endorsed, “Anna Eckles’ deed to the south side.” The executor handed this deed to Mrs. Ketchum, the grantee in the deed. She looked at it, and inquired whether it should be recorded. Being answered in the affirmative, she returned it to the executor, with instructions to have it recorded. He caused this to be done.
Manual tradition of the deed is not essential. It has never been claimed that a physical delivery of land is necessary. The deed is but a symbol of the transfer of the land. Therefore, it is settled that manual tradition of the deed is not essential. True, such tradition is evidence of
II. Since, then, manual tradition is, contrary to the rule in the delivery of chattels, not' indispensable, it is no argument against the deed that there was a failure to make physical delivery of the paper, though it was in the power of the grantor to surrender the same. The authorities are overwhelmingly opposed to the argument that the keeping of physical control of the paper by the grantor is conclusive against delivery. It has been ruled many times that an effective delivery of a deed is not negatived because it remained in the physical power of grantor to retake the deed, or because he retained mental power to alter his intentions. In Ray v. Hallenbeck, 42 Fed. 381, after finding there was an original purpose to execute the deed, and that the paper was later seen in a drawer in the house where both parties to the instrument lived, it is held to be a good delivery, where the paper ultimately reached the grantee, because, while the grantor kept control, he had not changed his original purpose, though he was at liberty to do so.
Where one had the mental power to alter his intention and the physical power to destroy a deed in his possession, and dies without doing either, there is but little reason for
In Criswell v. Criswell, 138 Iowa 607, there was not a moment, after the father told the nurse what to do with the paper, when he did not retain the power to demand and obtain its return, and, therefore, not a moment when he did not have the paper under his control: But we held that, despite this, the paper was effectively delivered when, after the death, this custodian found that it named a certain son as grantee, and thereupon handed him the paper. In White v. Watts, 118 Iowa 549, at 552, we held that the fact that the grantor had power to recall was not controlling, where he said nothing and did nothing, after he left the paper with another, to be delivered to the grantee after death, and never called for the paper. In Stevens v. Hatch, 6 Minn. 64, a new deed was made, to correct a misdescription. The grantor wrote the grantee that the new deed was in the grantor’s safe, and that he would rather not record it until he saw grantee, in order that both might see, before recording, whether all was right. Grantee acceding to this, it was held that the new deed was well delivered. How does this differ, in effect, from the keeping of the deed at bar in the box of the grantor? Why does such retention destroy delivery, if keeping the deed in the safe of grant- or will not?
We hold that the decree cannot be sustained merely because grantor kept the deed in his own box, and retained the power to destroy the deed — a power which he did not exercise. We recur to the point that all required is evidence that grantor intended to pass title.
IV. In determining the intention with which grantor leaves the deed with another, evidence of any declarations or conversations on the subject, at that time or a subsequent
In Newton v. Bealer, 41 Iowa 334, at 338, the grantor voluntarily executed a deed to certain lands to a son, reserving the use and occupancy to himself during his lifetime. This deed was kept by the father in a chest with other papers. When, shortly before the grantor’s death, one
“If a father dies, leaving among his papers a deed of land, duly executed in form to one of his children, the law will give effect to the same, if .there is anything indicating the intention of the intestate that it should become effective.”
In Hutton v. Cramer, 10 Ariz. 110 (85 Pac. 483), the facts are almost identical, except that the paper was placed in a box owned by the grantee. But this difference is eliminated, because it was arranged that the grantor have access to the box, and because the case finds a good delivery though grantor “might have regained possession” under this arrangement. The grantor said:
“I have the paper made out, and I would like to go and deposit them in your box in the bank.”
The papers were placed there in an envelope, with the grantee’s name written thereon, and the grantor remarked:
“This contains what I am going to give you after I am dead; keep that here until I am dead.”
After the death, a deed to this grantee was found in the box, with a written declaration, stating that deed had been made .to him, and giving the reasons. It was held that the grantor had parted with the possession of the deed, without intending to reserve any right to recall. In Albrecht v. Albrecht, 121 Iowa 521, 526, 527, we deemed it important
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All agree that the delivery is effective if the deed Ir1 handed to a third person, with direction to hand over the paper, on death of the grantor. It is so ruled in the .Cris-well case and many others. In that case, the paper was handed to a third person, who did not know its contents, with direction to keep it “until the trouble was over.” After the death of grantor, the third person found that a son was grantee, and the paper was then given to him; and we held that the title passed. While, in the case at bar, there was no delivery to a third person, surely it affords at least as strong evidence of intention to part with title as a direction that a third person should keep a paper until after grantor died; for, in the case at bar, the grantor had declared that he could do nothing about willing the property, because he had already deeded to Anna Eckles, the deed was found in his possession, endorsed “Anna Eckles’ deed to the south side,” and thereupon, the executor handed the deed to Mrs. Ketchum, and she took it and recorded it. And there would seem to be, in effect, little difference between this case and Arrington v. Arrington, 122 Ala. 510 (26 So. 152), where a father handed a deed to the mother of reputed illegitimate children, and said to her:
“Take these papers, and, if I die before you do, look after them for the children; and if you die before I do, I will look after them.”
The mother did not know what the papers were. It was held to be a vesting of the legal title in the children eo instanti upon the death. What is the essential difference be
“If the instrument be handed over to % third person, under circumstances indicating a purpose to part with control over it, a delivery may be found, even though there is no showing of express instructions to pass it on to the payee, donee, or grantee. An instruction or direction to hold, for the benefit of such person is all that is necessary.”
All that is essential is proof of intention to part with title.
The facts at bar have at least the force of acts from which it is possible to infer a direction that a paper shall be handed over after the death of the director. Lutes v. Reed, 138 Pa. 191 (20 Atl. 943); Miller v. Meers, 155 Ill. 284 (40 N. E. 577); Baker v. Hall, 214 Ill. 364 ( 73 N. E. 351); Crain v. Wright, 114 N. Y. 307 (21 N. E. 401); Squires v. Summers, 85 Ind. 252; Crabtree v. Crabtree, 159 Ill. 342 (42 N. E. 787); Scrugham v. Wood, 15 Wendell (N. Y.) 545, approved 16 Iowa 460, and 41 Iowa 334; Stevens v. Hatch, 6 Minn. 64; Standiford v. Standiford, 97 Mo. 231; Phillips v. Houston, 50 N. C. 302; Thompson v. Calhoun,
In Anonymous, 13 Viner’s Abr. 23 K. Subd. 12, it was held to be a good delivery where A delivered a deed made to J. S. to J. D., though he did not say it was for the use of J. S. To like effect is Douglas v. West, 140 Ill. 455 (31 N. E. 403). In Doe dem. of Garnons v. Knight, 5 Barn. & Cres. 671, 672, 686, 687, 691, a witness testified that one Wynne brought to her a brown parcel, and said, “Here, Bess, keep this, it belongs to Mr. Garnons.” In a few days, he returned, and asked for the parcel. She gave it to him, and later, he returned a parcel less in bulk than the one he had taken, and said, “Here, put this by.” " After his death, it turned out to be a mortgage deed to Garnons. It was held to be a good delivery. Now, surely, saying to a third person to keep a parcel, and that it belonged to Mr. Garnons, is noj stronger than placing the paper in a box, and saying thereon, “This deed belongs to Anna Eckles Ketchum.” This holding was approved in Jones v. Swayze, 42 N. J. L. 279. It seems to us that -what was said and done by this grantor have at least the effect of such a direction.
V. It may be argued that an admission that one has “deeded” does not necessarily mean that one had parted with title; that delivery, as well as making a deed, is essential. That may be conceded to be true, as an abstraction. But' here was more than a statement that there had been a deed made. The relations between the parties were such as to make it natural that grantor desired the property to pass to the grantee. And the fact that a life estate is reserved tends strongly to prove there was an intention to pass present title. Ball v. Foreman, 37 Ohio St. 133; Sneathen v. Sneathen, 104 Mo. 201 (16 S. W. 497) ; Williams v. Latham, 113 Mo. 165 (20 S. W. 99) ; Thompson v. Calhoun, 216 Ill. 161 (74 N. E. 775). And the statement of testator
For the reasons stated, the decree of the district court must be — Reversed,.
Concurrence Opinion
concurs in holding that the evidence exact