Porter v. Woodhouse, 59 Conn. 568

Porter v. Woodhouse

59 Conn. 568 | Conn. | 1890

Andrews, C. J.

These are two cases tried together and depending on the same facts. The defendant is the executor of the will of Mrs. Julia Hinman, late of Hartford, deceased. The complaint prays that two deeds now in the possession of the defendant be delivered, one to the said Nora J. Porter, and the other to the said Julia Robertson. The only question in the case is, whether on the facts found these deeds were so delivered as to pass the title. The facts are as follows:—

Mrs. Julia Hinman in her lifetime, and until her death, owned two houses in Plartford, in one of which she lived. She died on the 10th day of June, 1888, aged eighty-two years. Several years before her death she made a deed of one of these houses to Mrs. Porter, and at another time a deed of the other house to Mrs. Robertson. They were warrantee deeds in form and were expressed to be for a valuable consideration. They were signed, sealed, witnessed and acknowledged. All the requisites of a formal execution were complete and each was filed on the back with the name of the grantee. Nothing was paid for them; they were in fact deeds of gift. The grantees never knew until after the death of Mrs. Hinman that they had been made. These deeds were placed by Mrs. Hinman in a box in which she kept her will, her bank books, her policies of insurance, and *573other papers of like kind, and in which she had also a bag containing one thousand dollars in gold. The box was concealed in a closet in her bedroom. During the last year of her life a Mrs. Harriet Elliot lived with her and was her only companion and attendant. Previous to the 10th day of April, 1888, Mrs. Hinman had told Mrs. Elliot that she had deeded away the two houses, but had refused to tell her to whom. On that day Mrs. Hinman fell, and was so severely injured that she feared she was going to die. On the morning of the 11th she told Mrs. Elliot where the box was, and requested her to bring it out. Mrs. Elliot did so and placed it on the bed. Mrs. Hinman then said to Mrs. Elliot, “ Take that box into your lap. I put it into your possession. My private papers are in that box and a bag of gold containing one thousand dollars. My will is in there and the deeds of these tw„o houses. I told you before that I have deeded away these houses; on the deeds are the names of the persons who are going to have the houses.” She then told Mrs. Elliot to take charge of the box and put it back into the closet, and told her where the key to the box was ; and that if she did not live she wished her (Mrs. E.) to speak to E. G. Woodhouse, the defendant, and request him to read her will after the funeral. Then, after some further directions about the box, she closed the conversation by saying, “I have said enough, so that you will know what to do with the box in case I should die. If I live I will talk further about the contents of the box. But don’t you open it until after my funeral.” After this conversation Mrs. Elliot took charge of the box, but so far as appears never opened it until the day of Mrs. Hinman’s funeral. In conversations subsequent to this one Mrs. Hinman spoke about the bag of gold in the box, and of the provisions of her will, but never spoke about the deeds. Mrs. Hinman died about midnight of June 10th, 1888. From the morning of the preceding day to the time of her death she was in a dying state and in a deep stupor, during which she observed nothing and said nothing, except that at about nine o’clock in the forenoon she suddenly exclaimed, “ Call Robinson, call *574Robinson, there are those two deeds, one is for Julia Robertson and one is for Nora Porter.” No Robinson was there at the time and no one of that name had been in attendance upon her. Mrs. Elliot and a nurse, Mrs. Wright, were there, but Mrs. Hinman was not conscious of their presence or of what she was saying.

The delivery of a. deed implies a parting with the possession and a surrender of authority over it by the grantor at the time, either absolutely or conditionally; absolutely, if the effect of the deed is to be immediate and the title to pass or the estate of the grantee to commence at once; but conditionally, if the operation of the deed is to be postponed or made dependent on the happening of some subsequent event. A conditional delivery is and can only be made by placing the deed in the hands of a third person to be kept by him until the happening of the event upon the happening of which the deed is to be delivered over by the third person to the grantee. But it is an essential characteristic and an indispensable feature of every delivery, whether ab-. solute or conditional, that there must be a parting with the possession of the deed and with all power and control over it by the grantor for the benefit of the grantee at the time of delivery. Prestman v. Baker, 30 Wis., 644. The delivery of a deed is as essential to the passing of the title to the land described in it as is the signing of it or the acknowledgment. It is the final act without which all other formalities are ineffectual. To constitute a delivery the grantor must part with the legal possession of the deed and of all right to retain it. The present and future dominion over the deed must pass from the grantor. And all this must happen in the grantor’s lifetime. Younge v. Guilbeen, 3 Wall., 636 ; Cook v. Brown, 34 N. Hamp., 476 ; Fisher v. Hall, 41 N. York, 421 ; Jackson v. Leek, 12 Wend., 105 ; Fay v. Richardson, 7 Pick., 91 ; Alsop v. Swathel, 7 Conn., 503 ; Hoboken City Bank v. Phelps, 34 id., 103 ; 2 Kent’s Com., 439 ; Bouvier’s Law Dict., Delivery.

Upon the facts above recited the Superior Court rendered judgment for the defendant and dismissed the complaint. *575We think that judgment was clearly right, for the reason that Mrs. Hinman never intended to and never did part with the legal control over the deeds. The box in which the deeds were was in the charge of Mrs. Elliot as the servant and agent of Mrs. Hinman, and so remained till after Mrs. Hill-man’s death. The deeds were never taken out of the box till after her funeral. Mrs. Elliot never knew till that time the names of the grantees. She had never received any directions as to the deeds as such, apart from the other contents of the box. It is not and cannot be claimed that Mrs. Hinman parted with the possession of the box itself, or the control over the bag of gold, or of her bank books, or of her will, or of her insurance policies. Yet all these were in the box with the deeds, and she parted with the possession and control of these just as much as she did of the deeds. The deeds were never separated from the other contents of the box. The conversation on the morning of April 11th clearly shows that Mrs. Hinman did not intend at that time to part with the control of the contents of the box. She intended to give further directions in regard to them. Her closing words were—“ If I live I will talk further with you about the contents of the box.” That further talk she never had, and so her intent as to the deeds remained undisclosed. Mrs. Elliot was never made the custodian of the deeds for the benefit of the grantees. She at all times held them in the same way that she held the other things in the box, as the agent of Mrs. Hinman.

In reference to the conversation just mentioned the Superior Court has found that.Mrs. Hinman’s sole purpose in the transaction was to give Mrs. Elliot information of the existence and contents of the box. It is claimed by the defendant that by such finding the Superior Court has left nothing for the examination of this court, for the reason that it excludes all intent on the part of Mrs. Hinman to transfer the title to the grantees named in the deeds. This may be true, but we do not place our decision upon it. The delivery of a deed includes not only an act by which the grantor parts with the possession of it, but also a concurring *576intent on the part of the grantor that it shall vest the title in the grantee. As we are satisfied that Mrs. Hinman never did any act by which she parted with the possession of the deeds for the benefit of the grantees, the question of her intent becomes immaterial.

There is no error in the judgment of the Superior Court.

In this opinion the other judges concurred.