93 N.J. Eq. 383 | New York Court of Chancery | 1921
On August 29th, 1914, William H. Rommell was the owner in fee-simple in his own name of real property situate in the county of Somerset, and on or about that date, he executed a deed iherefor to his wife, the complainant, and to- his daughter, one of the defendants, Lillian J. Bird (then Lillian J. Rommell), and acknowledged the same -in the presence of a proper official, which deed, unrecorded, he placed and kept in a box in the home at which he and the grantees resided and where it remained until after his death. .He died intestate April 23d, 1917, leaving him surviving his wife, his daughter Lillian and eight other children, seven of whom are minors. The'deed was placed on record by complainant June 8th, 1917. The bill of complaint herein names the nine children as defendants and prays a decree that by the said deed an undivided one-half of the premises passed to the complainant in fee-simple and that said children have no interest in such undivided part. A guardian ad litem was appointed for the seven infant defendants-, who, on their behalf, filed an answer and counter-claim denying that the deed in question was delivered to the grantees and praying that it may he declared null and void, and that a decree be made that Rommell died seized in fee of the premises and that tire same descended to his nine children as tenants in common, subject to an estate in dower in complainant. Lillian J. Bird and May Happe (the other adult child) are R-ommelFs children by a marriage prior to. his marriage with complainant. An answer filed for them asserts that the deed in. question was delivered'to the grantees therein and that it was Rommell’s intention thereby to con
The testimony tending to show the purpose Rommell had in mind when lie executed the deed, and his intention with regard to its delivery, is meagre and comes solely from the lips of the grantees. It appears that Rommell, his wife, the defendant Lillian J. Bird and the infant children resided together on the premises in question. Lillian was sickly and it was thought she would not marry and would continue to reside with complainant and assist her in the care of the young children, and, therefore, Rommell desired that the complainant and Lillian should have his property. He prepared the deed himself and then told his wife and daughter that he proposed conveying the property tothem and requested the former to accompany him to Bernardsville to have “his signature witnessed.” He had the prepared deed in his possession when he left home for Bernardsville, and at the latter place he signed and acknowledged it and the officer affixed a certificate of acknowledgment, his wife being present throughout all these formalities. When the certificate of acknowledgment was completed, Rommell took the deed, put it in his pocket and carried it home. At no time after he had placed the deed in his pocket did his wife see it prior to his death. Upon arriving home he deposited the deed in a box in which he kept all bis persona] papers and placed the box in.a drawer in a chiffoniei in which nothing was kept except his clothing and other personal belonging* and which stood in a bedroom occupied hv him and his wife. She did not see him deposit the deed in the box, but he told her that day he had put it there and he said if anything «hould happen to him, it would be in the box, and that if he did not have it recorded before he died, to have it recorded immediately after his death. From that day he did not speak to her or to his daughter concerning the deed, and after his death bis wife found it in the box, with other papers belonging to him, and about six week* after his death she had the deed recorded. At no- time did he say to* either grantee, “This is the deed ; I deliver it to you,” or equivalent words, and neither of them ever had the deed in her possession for even an instant of time. 'Lillian had learned, through a conversation
The complainant would meet with no difficulty in enforcing her claim because .the conveyance was from the husband direct to his wife. Such a deed would be held to pass an equitable estate in 'fee and she would be entitled to have the legal title from her husband’s heirs. Sipley v. Wass, 49 N. J. Eq. 463; Vought v. Vought, 50 N. J. Eq. 177; Coudrey v. Coudrey, 71 N. J. Eq. 353. Her difficulty is that she has failed to show delivery of the deed by her husband to her or to the other grantee.
The elementary principles governing the question' of delivery of a deed are well settled. It is not necessary that there should be an actual handing over of the instrument to constitute delivery. A deed may be delivered! by words without acts, or by acts without words, or by both acts and words. A deed may be effectual to pass real estate though it be left in the custody of the grantor. It is necessary, however, that there should be something evincing the intent. It must satisfactorily appear, it not from acts and express words, yet from circumstances, at least, that there was an intention to part with the deed and of course pass the title. Crawford v. Bertholf, 1 N. J. Eq. 458; Woodward v. Woodward, 8 N. J. Eq. 779; Cannon v. Cannon, 26 N. J. Eq. 316; Ruckman v. Ruckman, 33 N. J. Eq. 354; Hildebrand v. Willig, 64 N. J. Eq. 249; Rowley v. Bowyer, 75 N. J. Eq. 80; Abbe v. Donohue, 90 N. J. Eq. 597; Folly v. Vantuyl, 9 N. J. Law 153.
The fact that the officer, in whose presence Rommell executed the deed, certified that the grantor acknowledged that he had signed,-sealed and delivered it, is'not conclusive evidence of delivery, but may be rebutted by other evidence showing that there was actually no> delivery. It frequently happens that a, grantor
My conclusion is that the deed was not delivered and was not intended to take effect in the grantor’s lifetime, but was to take effect after his death, and is therefore null and void and should