Parker v. . Mott

Jun 3, 1921
Reporters:
, , ,
Before:
Hoke
Hoke, J.,

after stating the case: The authorities in this State have been very insistent upon the position that “in order to a valid gift of personal property inter vivos there must be an actual or constructive delivery with the present intent to pass the title.” Thomas, Exr., v. Houston et al., ante, 91; Askew v. Matthews, 175 N. C., 187; Zollicoffer v. Zollicoffer, 168 N. C., 326; Patterson v. Trust Co., 157 N. C., 13; Gross v. Smith, 132 N. C., 604; Duckworth v. Orr, 126 N. C., 674; Wilson v. Featherston, 122 N. C., 747; Newman v. Bost, 122 N. C., 524; Medlock v. Powell, 96 N. C., 499; Adams v. Hayes, 24 N. C., 361. These requisites are also essential to a valid gift causa mortis, the principal distinctions being that the latter is made “in contemplation of death from a present illness or some immediate peril,” is revocable during the life of the donor and is revoked by his recovery or escape or by his surviving the donee. Thomas, Exr., v. Houston, supra; Johnson v. Colley, 101 Va., 414, reported also in 99 A. S. R., 884; Basket v. Hassell, 107 U. S., 602; 12 R. C. L., pp. 962-968. Where the subject-matter of an alleged gift'is a chose in action, without note, bond or other written obligation, it has been very generally held that a written assignment is required in order to a valid gift. Poff v. Poff *440 (Va.), 104 S. E., pp. 719-726; Cook v. Lum, 55 N. J. L., 373; Adams v. Stone Co. (Cal.), 178 Pac., 498; 14 A. & E., p. 1022. Though in a recent case of Dinslage v. Stratman, 180 N. W., p. 81, the Supreme Court of Nebraska, in a learned opinion, maintains the position that a valid gift of an open account may be made by parol where the donor, with intent to make a present gift, directs .the debtor to pay the debt to the donee, the Oourt applying to it th.e recognized principle that a gift so made will be upheld when a delivery with the donative intent is made in the only way of which the “chose” is susceptible. Where a chose in action is represented by a bond or other written obligation it is usually held that a valid gift may be made by delivery of the instrument without indorsement, the same being with intent to presently pass the title, and in case the alleged donee is the debtor there may be a gift of the chose in action,, termed also a forgiveness of the debt, by a destruction of the instrument with the intent to give or a written receipt delivered of a whole or a part of the debt, etc. Carpenter v. Soule, 88 N. Y., 251; Ebel v. Piehl, 134 Mich., 64; Waite v. Grubbe, 43 Oregon, 406. And in such case, where the gift is otherwise complete, made with the intent to presently pass the note, authority is to the effect that it will not be rendered ineffective because the enjoyment is postponed till a future date or until the death of the donor. Thus, in the Dinslage case (Neb.), supra, it is said: “The mere fact that actual enjoyment of the gift by the donee is, by the declaration of the gift, postponed until the death of the donor, does not render the gift either conditional or testamentary, or in any way invalid,” citing many authorities, and the opinion quotes from Tucker v. Tucker, 138 Iowa, 344, to the effect that “If the gift is absolute, the mere postponement of the enjoyment until the death of the donor is not material, and will not defeat it.” In the case cited from New Jersey Reports supra of Cook v. Lum, Chief Justice Beasley, recognizing the great variety of circumstances calling for the application of the law of gifts, choses in action and other, states in effect the general principle in a very helpful way as follows: “But this is a maze not without its clue, for the cardinal principle as to what constituted a delivery that will legalize a gift is on all sides admitted to be, and the test is that the transfer is such that, in conjunction with the donative intent it completely strips the donor of his dominion of the thing given, whether that thing is tangible or a chose in action.” Applying the principle so stated to the facts presented, we are of opinion that this is a valid gift which presently passed the title to the principal of these notes to the donees retaining the right to interest thereon till the death of the donor and retaining possession of the notes for the purpose of collecting the interest and not otherwise. There is here no question of the donative intent, and the *441 same is admitted, and to carry out tbis purpose an attorney was pro- ¡ cured, a written assignment entered on tbe notes in tbe presence of tbe:' donees, or two of tbem, signed by tbe bolder. Tbe entry being, “Tbis note is hereby assigned, tbe interest to be pgid me during my life and at my death tbe note is to be delivered.” Both tbe writing and tbe testimony pertinent to tbe same evince and express tbe clear purpose of presently passing title to tbe principal retaining' possession of tbe notes, as stated, for tbe purpose of collecting tbe interest till tbe donor’s death. To emphasize tbis view of Jbe matter, tbe mortgage securing tbe notes is also delivered up marked “paid,” and tbe same is formally canceled of record, thereafter tbe donor no longer bad any control over-tbe principal of these notes, and tbis must be held a complete and perfect gift of such principal. Tbe right by contract to sever tbe principal from tbe interest of notes or other aboses in action, according to tbe intent and agreement of tbe parties, has been directly approved in tbis State, and is very generally recognized. King v. Phillips, 95 N. C., 245; 22 Cyc., p. 1512. And tbe force and effect of tbis transaction is to presently give tbe principal retaining tbe interest and tbe right to collect same till tbe donor’s • death. A case very similar is presented in Green v. Langdon et al., 28 Michigan, 221, where tbe -bolder of a note and mortgage, desiring to give one of bis children and her husband a part of tbe debt, indorsed thereon a gift of tbe said portion with tbe intent and purpose of forgiving or donating so much of tbe mortgage debt and to extinguish tbe same to that extent, retaining tbe notes: Held to be a perfect gift on tbe ground that it was all tbe delivery of which tbe subject was susceptible, consistent with tbe intent and purpose of tbe transaction. In that case Judge Christancy, delivering tbe •opinion, said: “As tbe debt, which was the subject of tbe gift, when considered with reference to tbe fact that tbe donee was tbe debtor, and that only part of tbe debt was attempted to be given, did not admit •of actual delivery, and as all was done that could well be done, under tbe circumstances, to render tbe gift effectual, we do not think tbe act and intention of the donor should be defeated merely because tbe subject did not admit of actual or technical delivery.” And that case also bolds that tbe transaction having taken place in tbe presence of one of tbe •donees, an acceptance by tbe other may be presumed. In Basket v. Hassell, 107 U. S., 602, and also in Harris Banking Co. v. Miller, 190 Mo., 640, tbe alleged gifts were held invalid as such, but on tbe ground that from tbe facts in evidence, tbe donor retaining possession of tbe instrument was given control of tbe debt till bis death, though in tbe last case tbe alleged donee was awarded tbe property by way of a valid and enforceable trust. And in a case in our own Court, Smith, Admr., v. Downey, 38 N. C., 268, where a deceased obligee bad indosed on a $900 *442 note that “one 33. was to have $600 of the note,” retaining possession, this on the record was claimed as a gift donatio causo mortis, and the same was disallowed for two sufficient reasons, that being an alleged gift causa mortis, the donor had recovered; and further, because the facts in evidence showed that the alleged donor was to have control of the note, and the debt that it represented, till her death. But in the present case, as stated, the transaction was an assignment of the principal with the present intent to pass same, retaining possession only for the right and purpose of collecting- the interest. On the facts in evidence, by correct interpretation, the transaction had the effect of passing to defendants all control and ownership of the principal; no collection of' same could thereafter have been made by the donor, possession being-retained by her for the purpose only of collecting the interest, this being-in accord with the act and intent of the parties.

We find no reason for disturbing the result of the trial, and the-judgment for defendants is

Affirmed.