22 N.H. 424 | Superior Court of New Hampshire | 1851
The defendant claims under the deed of his father, David Dustin, of the 4th of January, 1831. The case finds that David delivered the deeds to the witness, and asked him to keep them until his death, and then deliver them to the grantees. David died in 1841, when the witness delivered them. David told the defendant he had given him the land, and to take possession, which he did, and has always retained it.
But it may he a question whether the transaction itself does not show an intention in the grantor to keep the deeds ambulatory until his decease. If he did not mean to reserve the same power over them that he would have over a will, why did he not deliver them during his life ? His statement to the defendant, that he had given him the land, and that he might take possession, by parol, would not affect his rights. It amounted at most, to a parol permission to occupy the land.
It may also be a question whether, admitting the position of the defendant to be correct, and the deed to operate from the death of the grantor, by relation back to the first delivery, the consequence follows which he supposes. The authority given to Nathaniel Dustin, was revocable in its nature. It might have been revoked during the life of the grantor, and after that he could not have delivered the deed. The consequence was voluntary without valuable consideration, and would have been ineffectual against a creditor, or the land might have been conveyed to a stranger.
When did the title vest in the grantee ? In Foster v. Mansfield, 3 Met. 412, the grantor executed the deed and delivered it to Dr. S., with directions to deliver it to the grantee after his death, which was done. The question was, whether this was a
If a grantor deliver any writing as his deed to a third person, to be delivered over to the grantee by him on some future event, it is the grantor’s deed presently, and the third person is a trustee of it for the grantee. Wheelwright v. Wheelwright, 2 Mass. 452.
Upon this view, the grantee would have an interest, and if the happening of the event is merely the period appointed for the exercise of the right, a subsequent feoffment would not defeat it although there was merely traditio inehoata.
In the above case, there was no evidence that the grantor was to have any control after the first delivery.
In Hatch v. Hatch, 9 Mass. 307, the grantor delivered a deed to a third person to be kept by him until the grantor’s death, and then to be delivered by him to the grantee. It was held, that whether the writing was to be considered as a deed or as an escrow, at the time of the first delivery, it was to be considered as then effectually delivered to the use and benefit of the grantee, he having received the deed and occupied and claimed under it after the grantor’s death.
In Doe v. Bennett, 8 C. & P. 124, the grantor made a deed of his property to his daughter, and said, in presence of the witnesses, no one else being present, “ This is my last act and deed.” After this, he desired a third person to keep it, and not deliver it to the grantee until he was dead, it being suggested to him that she might otherwise take his property from him in his lifetime. Coleridge, J., ruled that the delivery had been completed.
This deed was clearly not an escrow, and it seemed to come within the class mentioned in the Massachusetts cases.
The question of the delivery of a deed was much considered in the case of Doe v. Knight, 5 B. & C. 671, in an elaborate opinion delivered by Mr. Justice Bailey. The faets were these: Wynne, an attorney, owed Garnous, having misapplied the money of Garnous. On the 12th of April, 1820, Wynne went to his sister’s, and produced a mortgage to Garnous, ready sealed, signed it in presence of his niece, using these words : I deliver this as my act and deed.” The niece witnessed it by his desire, and Wynne took it away. She did not know what the deed was, nor was Garnous’s name mentioned. In the same month, he delivered a parcel to his sister, requesting her to keep it, as it belonged to Mr. Garnous. He came for it again in a few days, and she gave it back, and he returned it on the 14th, saying, “ Here, put this by.” He died on the 10th of August, and the parcel was opened and found to contain the mortgage.
In the month of May following this April, he mortgaged his real 'estate to the defendant.
The question therefore involved in the case was, whether the first deed was so delivered that Wynne had no control over the land to mortgage it; similar in that respect to the present question, whether David Dustin, after the delivery of the deed to Nathaniel could make an agreement about the line.
The Court, (Garow, B.) told the jury that the question was for them to decide whether the delivery to Miss Wynne was, under all the circumstances of the case, a departing with the possession of the deed, and of the power and control over it for the benefit of Mr. Garnous, and to be delivered to him, either in Mr. Wynne’s lifetime, or after his death, or whether it was delivered to Miss Wynne merely for safe custody,'as the deposi
said that the opinion of the jury therefore, was, that Wynne parted with the possession, and all control and power over the deed, and that she held it for Grarnous, free from all' control and disposition of her brother. It was urged that there was no evidence to warrant the finding. Is this objection, however, valid ? Why did Mr. Wynne part with the possession to his sister, except to put it out of his own control ? And though she did return it to her brother when he asked for it, would she. not have been justified had she refused ? The finding, therefore, is well warranted by the evidence. There are many authorities, that a deed will operate as a deed, though it is never parted with by the grantor. Where there is nothing to show that he did not intend it to operate, immediately, it is a valid deed.
But if this point were doubtful, it is clear that the delivery to a third person for the use of him in whose favor the deed is made, where the grantor parts with all control over the deed, makes the deed effectual from the instant of such delivery.
The question which Bayley, J., puts, is pertinent here, — Why did David Dustin part with the possession of the deed, except to put it out of his own control ?
Our opinion is, that the instruction was sufficiently favorable to the defendant, and that there should be
Judgment on the verdict.
