69 Wis. 300 | Wis. | 1887
We fail to see any force in the objection that the plaintiff has no legal capacity to sue, but that this action should have been brought by the personal representative of the deceased. The plaintiff is a feme sole, has the
Now recurring to the complaint, we find it alleged that the defendant, Deegan, willfully killed the plaintiff’s husband; that a suit was about to be instituted against him to recover damages for causing such death; that Deegan heard of this premeditated suit, and made overtures of settlement with the plaintiff; that thereupon it was agreed by and between Deegan and the authorized agent of the plaintiff that Deegan should make, execute, and deliver, to one Schwin, in trust for the plaintiff, a promissory note in the sum of $1,550, due one year from date, and a mortgage to secure the payment of the same, which the plaintiff agreed to ac
It is in effect alleged that on the 9th of September, 1886, in Ozaukee county, Deegan made and executed a note and mortgage according to agreement, and at the time and place delivered these securities to his co-defendant, Ages, to deliver the same to the plaintiff, when the plaintiff should execute and deliver to the depositary a good and sufficient release and satisfaction for her claim for damages against Deegan; that the plaintiff was not personally present at the time of the execution of the note and mortgage, and Deegan desired to have the release signed by the plaintiff in person. That thereafter, on the 13th of September, 1886, the plaintiff did make and execute to Deegan a full and complete release and satisfaction, in writing, of her claim against him, and offered the same to Ages, and demanded of him the delivery of the note and mortgage, which Ages refused to deliver, for the reason that he had been instructed by Dee-gan not to deliver them. It is further alleged that the trustee afterwards assigned to the plaintiff all his right and title to the note and mortgage, and that both the trustee
The question now is: Do these allegations show that the note and mortgage were delivered to Agez as an escrow, he to keep them until the plaintiff should execute and tender to him her release for damages, and then deliver them to her. ¥e think they do. There was a conditional delivery of the securities to Agez>,to be kept by him until the plaintiff executed and tendered her release for damages, when they were to be delivered to her. This is the natural and obvious meaning of the facts stated. The condition having been performed, the plaintiff is entitled to the possession of the note and mortgage. Says Dixon, C. J., in Prutsman v. Baker, 30 Wis. 641: “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 performance of some-condition or conditions by the grantee, or some one else, or until the happening of some event, when, upon the performance or happening of which, the deed is to be delivered over by the depositary to the grantee.” Again: “ It follows, in case of conditional delivery, or where the instrument has been deposited as the writing or escrow of the grantor, that it does not become the grantor’s deed, and that no estate passes until the event has happened upon which it is to be delivered to the grantee, or until the second delivery or redelivery, as it is sometimes called, by the depositary to the grantee. Whether in such case actual delivery to the grantee is necessary in order to give effect to the instrument as the deed of the grantor, seems not to be very well settled, but the inference would appear to be that it is not. The indication from the authorities quite clearly is that it becomes the grantor’s deed the moment the condition has been performed or the event has happened, upon which the
These remarks of the chief justice are quite applicable to the facts stated in the complaint, and clearly show that the note and mortgage were delivered to Agez as an escrow, he to hold them until the plaintiff had executed her release and tendered it to him, which it appears she has done. She is therefore entitled to the possession of the securities.
. The learned counsel for the defendants insists that the complaint shows that there was no delivery of the note and mortgage by Deegan, because, he says, the latter retained control of them and had the right to recall them while in the hands of Agez, who was simply his agent. We do not think this is a fair construction of the averments of the complaint. Not a fact is stated which justifies the assumption that Agez was the mere agent of Deegan alone, so that the latter had the right to recall the note and mortgage while in his hands. The case is precisely the same as it would have been had the note and mortgage been delivered to Agez, to hold, until the plaintiff paid him $1,550, for the maker, and then were to be delivered over to the payee. As soon as the condition was performed or pa\-ment made, the securities would take effect and belong to the plaintiff. Nor could Deegan recall them until the plaintiff had had time to comply with the condition. In the JPrutsmam Oase the grantor was to have control of the deed during his life; it was therefore held there had been no valid delivery. If the note and mortgage were subject to be recalled before delivery to the plaintiff, a different question would be presented. But this is not the case. A full and fair settlement of the cause of action for damages had i been made by the parties, and these securities were given in pursuance of that settlement. They were not delivered to her at the time of execution, because she did not happen
The counsel for the defendant refer us to Younge v. Guilbeau, 3 Wall. 636; Parmelee v. Simpson, 5 Wall. 81; Fitch, v. Bunch, 30 Cal. 208,— in support of the position that the note and mortgage in this case were never delivered. But those cases in their facts are so unlike the one at bar that they require no comment. In the California case a deed was deposited by the grantor with a third person, to be delivered to the grantee upon the order of the grantor; and it was held that it was not an escrow, but remained in the possession of the grantor. But this whole subject of the conditional delivery of instruments, and when they will take effect, is so thoroughly examined in the Prutsman Gase that it is unnecessary to discuss it further here. In our view, the complaint shows that the note and mortgage in question passed beyond the control of Deegcm; that he placed them in the hands of Ages,, with the intent that they should be delivered to the plaintiff when she executed her release, in order to complete the settlement which had been made. And as she performed the condition, she is entitled to the possession of the securities.
It follows from these views that the order of the circuit court overruling the demurrer was correct, and must be affirmed.
By the Court.— Order affirmed.