141 Me. 267 | Me. | 1945
In the bill in equity to which the appeal here presented relates, the plaintiff seeks relief against what he alleges is a cloud on his title to property acquired under a deed dated April 2, 1936, recorded August 5, 1936. The cloud is .said to originate in a record at the registry of deeds indicating that he reconveyed the property to his grantor by a deed dated April 22, 1936, recorded October 27, 1942. It is undoubted that the plaintiff signed and acknowledged
The grantor in the deed of April 2, 1936, and the grantee in the deed of April 22, 1936, was one Dominick Avenzato, who died intestate on September 21, 1942. The defendants are his widow and children and the administrator of his estate. The deeds of April 2 and April 22, 1936 appear in evidence as Plaintiff’s Exhibits No. 5 and No. 1. The instrument in dispute, which appears on its face to be a quitclaim deed of the same property described in Plaintiff’s Exhibit No. 1, is Plaintiff’s Exhibit No. 3, although the record shows that it was produced from the custody of the parties defendant. Each of the three papers carries an endorsement on the back indicating that it was prepared in the office of one Clarence E. Sawyer, who died prior to the commencement of the process. His signatures, identified by his son, indicate that he witnessed all signatures and took the acknowledgments.
As the issues were framed by the bill and answer it seems unnecessary to review the allegations in their entirety since the relief sought must be granted or denied according to
The death of the scrivener occured on February 24, 1941. The evidence of his son, the witness above referred to, indicates that thereafter he sorted a mass of papers found in his father’s files and attempted to mail them to the clients to whom they belonged. He states definitely that he mailed some papers to the plaintiff. There may be inference that he mailed something to Mr. Avenzato, in testimony that he recalls finding the name in the files because of its unusual nature and believes that he found documents bearing it which would have been so mailed in normal course in the distribution of papers he was making. There is no evidence however that Plaintiff’s Exhibit No. 3 was in the files of the scrivener at the time of his death or that his son found it and mailed it to Avenzato.
As the record stands, the sole support for the plaintiff’s cause, other than the inferential force of the testimony of the son of the scrivener, is found in the presumption that an executed deed retained in the possession of the grantor was never delivered by him. Hatch v. Haskins, 17 Me., 391; Patterson v. Snell, 67 Me., 559; 26 C. J. S., 593, Par. 184 a. The cases cited recognize that there is a presumption of at least correlative force that a deed found in the possession of the grantee was delivered by the grantor. This presumption in direct opposition to the plaintiff’s contention is likewise stated in the text of C. J. S., - Vol. 26, Page 594, Par. 184 b. It is urged also on behalf of the plaintiff that a deed found in the possession of the grantee is invalid to convey the property it describes if it reached that possession by mistake. On this point we are cited to
The unique feature of the present case lies in the fact that the plaintiff signed and acknowledged two instruments on one day either of which, if delivered, would convey the property in dispute to the individual named as grantee in both. That the documents are not an original deed and a carbon copy of it produced simultaneously is established conclusively by unimportant differences in their wording. They are both originals but one of them has the single word “copy” typed or written upon it, not on the face or front of the sheet where the words of conveyance appear but on the reverse side where the instrument is described by designation of the type thereof, the names of the parties thereto, the date and the name of the scrivener, and provision to show its record, now filled in over the attest of the Register of Deeds.
It is clearly established by proof that on the day following the death of the grantee named in plaintiff’s deed of April 22, 1936, and in the recorded paper which is alleged to be a copy of it, the latter was found in the apartment on the premises it purports to convey which was occupied by
Appeal dismissed.
Decree below affirmed.