Rogers v. Rogers

53 Wis. 36 | Wis. | 1881

Cassoday, J.

If the father did not intend that the deed should take effect, he should have kept it himself or placed it in the hands of a stranger, and not have delivered it to his son, the grantee. Lowber v. Connit, 36 Wis., 176.

In Hinchliff v. Hinman, 18 Wis., 130, it was held that “, where one has executed a deed of land, and delivered it to the grantee with intent to pass the estate, the legal effect of such delivery will not be altered by the fact that both parties supposed that the deed would not take effect until recorded, and might be revoked at any time before record.” To the same effect is Bogie v. Bogie, 35 Wis., 659. Here the undisputed evidence clearly shows that the vei-y object of the respondent in delivering the deed was to give it effect. Would the fact that after such delivery the son handed the deed back to the father, who placed it in the package and then handed the package back to the son for deposit, and the subsequent destruction of the same, as claimed by the father, operate as a cancellation of the deed? In Parker v. Kane, 4 Wis., 1, it was held that “the cancellation or destruction of a deed of conveyance of lands, by the consent and agreement of the parties, does not operate to revest the title in the grantor.” To the same effect are Wilke v. Wilke, 28 Wis., 296; Hilmert v. Christian, 29 Wis., 104; Bogie v. Bogie, 35 Wis., 659.

In view of these well-settled principles, we must hold that immediately upon the delivery of the deed by the father to the son it became effectual, and vested the legal title to the land described in the son. There is no claim that the father ever delivered to the son the alleged declaration of trust, much less that the son ever accepted or undertook to perform such trust, or ever signed any paper agreeing to do so. Assuming, that the father, prior to the delivery of the deed, had drawn a declaration of trust, and that the same was in the package at the time of such delivery, and that the son subsequently, having access to the package, saw it and knew its contents, as urged by counsel, yet would such facts prevent the legal title from being vested in the son by the delivery of the deed, or operate to divest the title after it was so vested? "We are clearly of the opinion that they would not. There is no claim that there was any declaration of trust in the deed, rior that there was anything in the deed making any reference to the alleged declaration of trust, or to any other paper. We are unable to find evidence in the case which would authorize us in holding that the relation of trustee and cestui que trust was ever assented to by the son, much less created at the time of the delivery of the deed. The circuit court seems to have reached the same conclusion in this regard, otherwise judgment would have been entered preserving and making effectual the alleged trust, instead of dismissing the complaint and treating the deed as a nullity. In fact, it is the theory of counsel for the respondent that neither the deed nor the declaration of trust ever went into effect, but that they together were, in substance, an ineffectual last will and testament, which, if they had been effectual, would have been revocable at pleasure. But this theory is sufficiently disposed of by our holding that the delivery of the deed was effectual to pass the legal estate to the grantee.

The evidence strongly tends to show that the private and business relations of the father and son were, at the time of the delivery of the deed, and for a long time prior thereto had been, quite intimate and confidential, and that the father had received money of the son which he had failed to repay; and as the father had become very old, it would seem that he concluded to obviate the making of a will, for which he seemed to have an abhorrence, and convey this land to his son, with the expectation that lie would, to a certain extent, become the almoner of his other children; and we are inclined to believe that the alleged declaration of trust was nothing more than a statement written' out by the father for the purpose of leaving the same at his death as a suggestion to the son in that respect, but without intending to make it binding upon him. But, subsequently to the delivery, their friendly relations were for some cause interrupted, and hence a different disposition of the land became desirable.

The equity of the complaint is denied. This, however, is not an action to compel the respondent to convey the land, but merely to quiet the title and restore the evidence of a title already vested in law. In such a case it would seem to be unnecessary to allege and prove that there was a good consideration for the deed which vested the title. Eiden v. Eiden, 41 Wis., 460. In the case at bai’, however, we think there was a good consideration for the deed.

By the Court.— In view of the admissions in the complaint, and the offer of the counsel for the appellant on the argument in this court, we hereby reverse the judgment of the circuit .court, and remand the cause with direction to enter judgment according to the relief demanded in the complaint, but with and subject to the condition that the defendant shall have the exclusive right to the use and occupancy of the premises described, during the term of his natural life.