54 P. 162 | Or. | 1898
delivered the opinion of the court.
The plaintiffs, Mary E. Payne, Sarah Gunnell, Ann Thornton, Joseph Hallgarth, and William Hallgarth, and the defendant Charles Hallgarth, are the brothers
Dr. Brownell, the family physician, testifies that on October 21, 1893, he was in attendance upon the deceased at his home, and there met Dr. Honan, of LaGrande, in consultation; that he was present when the deed was signed and witnessed, and heard the discussion preliminary thereto ; that the deceased asked Dr. Honan what his chances were for getting well, and was told he would probably live a month or so, but it was thought he could not possibly get well, and that if he had any business matters to arrange he had better have them attended to right away. Witness, further testifying, says : “I told him I thought it would be better to fix matters up, and if he got well he could change it. * * * pje ¿0iq me that he didn’t owe the people in the East anything; that he came west with but very little property, and earned all his money here in the West, and earned it by hard work, and that the property should go to Jane’s children ; that he loved the children, and he wanted them to have the property when he died. He seemed to be uneasy about the way to dispose of the property, so that it wouldn’t tie Charlie up so that he couldn’t do business, and asked what he had better do ; how he had better do with it. I told him I guessed he had better deed it over to the children. Then he said ho
Jane Hallgarth testifies that she was living in the same house with deceased at the time of his death ; that his last sickness continued for a year or little over, but he was confined to his room only about the last month ; that she saw the deceased sign the deed, and that he handed it to her shortly thereafter; that Marsh took the deed, and when it was returned, about a couple of hours after-wards, deceased handed it to her. She further testifies as follows : “ He wanted me to have his land. He said he deeded me his land because I had been good to him, and kind, — took care of him in his sickness. Q,. Did he say anything about wanting it to go to your children ? A. Yes, sir; at his death. Q. What did you do with the deed then? A. I handed it back to him. Q,. What did he do with it then? A. He put it under his pillow. * * * Saw the deed the next day. It had been put away in a trunk. He gave it to my husband to put
C. H. Marsh testifies that one of Charles Hallgarth’s boys came to Elgin, and asked him to go down and draw a will for Sib. Hallgarth ; that he drew the deed at the request of Sib.; that when he came into the room Hallgarth spoke to him concerning the matter, whether it would be better to make a will or a deed, and explained to him what he wanted to do with his property, and witness told him he thought it would be better to make a deed. Deceased said the matter had been talked over, and asked witness which he thought would be best, and was informed that the deed was preferable, and thereupon a desci’iption was procured, and witness drew the deed, and it was signed by deceased in the presence of witness and Dr. Brownell. The substance of the understanding he got from Sib.’s conversation was “that the deed was to be placed in the Farmers’ & Traders’ Bank, to be put on record if he should die,, and, if not, to be returned to him.” On being recalled, the following was elicited on cross-examination: “ Q. I will ask you, if in your conversation with Sib. Hallgarth about what was the best instrument to carry, out his purposes, if you
Dr. M. F. Honan testifies “ that he was called in consultation with Dr. Brownell; that, after examining his patient, he told him he did not think he could get well, and that he could not live longer than about four weeks; that after dinner he saw Hallgarth privately, who told him he felt under no obligations to his other relatives; that what he had Charlie Hallgarth, his brother, and he had made together, and that he wanted Charlie’s children to get the benefit of it. A deed to Charlie, then a deed of trust to Mm, were discussed, but he finally concluded to deed it to Charlie’s wife, believing that he could trust a mother to take proper care of her children. When this was concluded, Hallgarth called Charlie in, and told him that he had made up his mind what he was going to do, and instructed him to ‘ have Marsh come up
John Ross, being called as a witness, says that he was a nurse in attendance upon Sibrit Hallgarth in his sickness ; that when the deed was witnessed Marsh took it to see if it was correct, and when it came back “ Sib.” handed the deed to Charlie, and said, “Charlie, take this, and put it away, and take care of it.”
Charles Hallgarth testifies that Sibrit was his brother ; that they were partners in business, and that Sib. had never been married; that he had made his home with witness’ family ever since 1868, and that he desired all of his property to go to witness’ wife and children ; that they had been kind to him, and for this reason he wanted them to have it, and to effect the purpose the deed was made ; that he did not want to tie witness up in his business, but wanted him to carry it on without interrup
Delivery is the final and conclusive act in the execution of every deed, as it marks the time when the locus pcenitentix in either party is precluded and the title has passed. A delivery is effected either by a manual transfer of the deed from the grantor to the grantee, or to some third party for his use, or by the doing of some act, or saying something, or by both, whereby the grantor manifests an unequivocal intention to surrender the instrument so as to deprive himself of all authority over it or of the right to recall it, and to consummate the conveyance : Fain v. Smith, 14 Or. 82 (58 Am. Rep. 281, 12 Pac. 365); Flint v. Phipps, 16 Or. 437 (19 Pac. 543); Brown v. Westerfield, 47 Neb. 399 (53 Am. St. Rep. 532, 66 N. W. 439) ; King v. Carpenter, 37 Mich. 364, 368; Martin v. Flaharty, 13 Mont. 96 (40 Am. St. Rep. 415, 19 L. R. A. 242, 32 Pac. 287); Doe v. Knight, 11 E. C. L. 632; Burnap v. Sharpsteen, 149 Ill. 225 (36 N. E. 1008) ; Provart v. Harris, 150 Ill. 40 (36 N. E. 958).
In the light of this .understanding of what is requisite to the act of delivery, we will examine the testimony, which will entail some recapitulation, and determine the effect of the transaction which is the subject of controversy. There are several material facts relating to it which it must be conceded have been established : (1) The deceased had fully determined in his own mind to invest Jane Hallgarth, the -wife of Charles Hallgarth, with the title to his property, believing that she could be trusted to give it to their children as they came of age; (2) He had definitely concluded that a deed should be employed as the means or instrumentality for making the transfer. His reason therefor was that, having been
Now, as it pertains to a delivery of the deed. Brownell says : “We told Sib. that, if he got well, he could destroy the deed, and if he did not get well it should be given to Jane, and taken care of.” On the cross-examination he says : ‘ ‘ The deed was to be recorded after Sib. died, and it was not to be recorded unless he did die. He was to keep it, and if he died they were to record it, and if he did not die he was to do as he chose with it.” The substance of the understanding that Marsh derived from Sib.’s conversation was “ that the deed was to be placed in the Farmers’ & Traders’ Bank, to be put on record if he should die, and if not to be returned to him.” ,As near as he could remember, the deceased’s words were something like this: “I want the property so if I don’t die, or if I get well, I can have it back again.” Dr. Honan says he advised him in this way : “After you make the deed out, put it up in escrow in the bank.” Later he says, in effect, that it was the purpose of the deceased in not having the deed recorded to so place it that he could recall it in the event of -his
Marsh says he advised him that the deed was the preferable instrument to employ, as he would be able to control it, and to recall and destroy it, in case he recovered. But he had made up his mind to make a deed before he sent for Marsh, and he sought his opinion after he came as to the effect of placing it in the bank subject to recall by him, and, if not so recalled, to be recorded after his death; and Marsh thought such a transaction would pass the title at his death, and he was impressed by Sib.’s conversation with the idea that he intended thus to dispose of the deed. Marsh took the deed to Elgin to attach his notarial seal, and neither he nor Honan saw it afterwards. Brownell thinks that when it was returned the deceased put it under his pillow, and this brings us to the time of its final disposition. Mrs. Hallgarth testified that when the deed was returned deceased handed it to her, and said, in effect, tliat he deeded her his land, and wanted it to go to her children at his death, and then that she handed the deed back to him,
As we have seen, the intention of the grantor should prevail, and it will determine the question of delivery. If he had pursued the course which Brownell, Honan, and Marsh say his conversation indicated that he intended to, it is plain a delivery would not have been accomplished, for the reason that he would have retained the power of recalling the instrument, and title could not have passed. But, if it ever was his intention to deposit the deed in the bank subject to his subsequent directions, he abandoned it; for he finally placed it in the hands of Charles Hallgarth, his brother and partner in business. His conversation prior to this time would seem to indicate that it was his purpose to retain control of it, and that it should not pass from him absolutely while he lived. The fact, however, that he handed the deed to the grantee, with a direct assertion that he deeded her his land, is of much significance, and is indicative of a present transfer. True, she returned the deed, and the purpose of its return is not fully explained.
Mrs. Hallgarth, however, testifies that he delivered the deed to Charles to put away for her, and this is consistent with the idea of a delivery of the deed at the time he handed it to her, remarking, in substance, that he deeded her his land. Mrs. Hallgarth seemed to think the understanding was that the deed was to take effect only in case of Sib. Hallgarth’s death, but there was some confusion in her mind about it, while Charles says it was delivered to him without any attendant conditions except the direction that he take care of it and have it recorded after his death. When asked if he would have returned the deed to Sib. if he had recovered and wanted it back, he answered that he would ; but what he would have done under contingencies that did not arise is sig
Reversed.