75 N.J. Eq. 80 | New York Court of Chancery | 1908
The delivery of a deed of conveyance of real estate is essential to its validity. Its delivery is a matter of intention, and the acts
These elementary principles have been recognized in this court in Crawford v. Bertholf, 1 N. J. Eq. (Sax.) 458, 467; Wood v. Woodward, 8 N. J. Eq. (4 Halst.) 779, 784; Martling v. Martling, 47 N. J. Eq. (2 Dick.) 122; Vreeland v. Vreeland, 48 N. J. Eq. (3 Dick.) 56, 60; and in the supreme court in Folly v. Vantuyl, 9 N. J. Law (4 Halst.) 153, 160; and in the court of errors and appeals in Ruckman v. Ruckman, 33 N. J. Eq. (6 Stew.) 354, 358, and Schlicher v. Keeler, 67 N. J. Eq. (1 Robb.) 635, 639. In Ruckman v. Ruckman it is said: “The essence of delivery consists in the intent of the grantor to perfect the instrument, and to make it at once the absolute property of the grantee, and his acts and declarations are the evidence of such intent.” In Schlicher v. Keeler it is said: “A deed does not become operative until it is delivered with the intent that it shall become effective as a conveyance. To constitute a good delivery it must appear from the circumstances of the transaction that it was the grantor’s intention to part with the deed, and thereby put the title in the grantee.”
Consistently with the principles above defined it must be held that if the grantor handed the deed now in question to the third party with the instructions already stated and with an intention to part with all dominion and control over the deed to the end that it should be presently effective as a conveyance, there was a valid delivery of the deed and a consequent present transmission of title from the grantor to the grantee co-eztensive with the grantor’s purpose; if, on the other hand, the grantor’s intention was that the deed should not permanently pass from his control, the deed would be ineffective as a present conveyance for want of delivery, and it could not be supported in such case as a conveyance to take effect after the death of the grantor, as the transaction would then embody the essential elements of a testamentary devise and be violative of the terms of our statute of wills.
In Schlicher v. Keeler, 61 N. J. Eq. (16 Dick.) 394, a deed had been handed by the grantor to a third party with instruc
The precise question here involved has frequently been before the courts of our sister states. The conclusions reached are almost uniformly to the effect that where the delivery of the deed by the grantor to the third person, with instructions for its delivery to the grantee at the grantor’s death, lias not been accompanied with some acts or words of the grantor indicating a
The reasons for the conclusions reached in the cases above cited are not entirely uniform; but all of the cases cited hold
“The delivery of a deed by the grantor to a third person to be held by him and delivered to the grantee upon the grantor’s death will operate as a valid delivery, where there is no reservation on the part of the latter of any control over the instrument. If, however, a power to recall the deed is reserved by the grantor there is no effectual delivery and the deed cannot take effect.”
In the several eases above cited the acceptance by the grantee is uniformly regarded as sufficient. In some cases the acceptance is assumed to be complete because of the presumption of acceptance bjr the grantee of that which is in his favor; in others the final acceptance by the grantee is held to relate to the first delivery.
In harmony with the adjudications already referred to, I think it must be held in this ease that the title to the land in controversy is in defendant. The deeds in question were delivered by the grantor to the third party with the instruction that at the death of the grantor they should be delivered by the third party to the grantee. The delivery to the third party was without reservation of control, on the part of the grantor over the instruments. No word was said to qualify the specific direction which was given, and nothing occurred to indicate a purpose upon the part of grantor to qualify the direction so given. The direction given was specific, complete and absolute. It is manifest that no purpose to recall the deeds existed in the mind of grantor at the time he delivered them; his purpose at that time was entirely fixed and definite. The suggestion is perhaps incident to all transactions of this nature that the grantor may have believed that he could recall the instrument in the event of a subsequent but unanticipated' change of purpose; but such suggestion enters the field of conjecture and cannot be properly entertained in the absence of some evidence of the fact. In Linton v. Brown’s Administrators, 20 Fed. Rep. 455, 465, Mr. Justice Bradley adopts the view that in the absence of some evidence of a contrary intent, full force must be given to the language of the deed and acknowl
* * * As observed in Cook v. Brown, 34 N. H. 460, the owner of land desiring to make disposition of it'afc his death, has three courses open to him, either of which he may adopt according to circumstances and as will best suit his convenience and intentions. Tf he desires to convey the same, but not to have his deed take effect until his decease, he can make a reservation of a life estate in the deed; or it may be done by the absolute-delivery of the deed to a third person, to be passed to the grantee upon the decease of the grantor; the holder in such case being a trustee for the grantee. But if he wishes to retain the power of changing the disposition of the property at his pleasure, that can only be properly effected by a will/ ”
But other circumstances of the present case exist which tend to strengthen the conclusion that it was the intention of the grantor to irrevocably deliver the instruments. The grantee was
I will advise a decree denying the relief prayed for!