102 Va. 9 | Va. | 1903
delivered the opinion of the court.
In the latter part of 1898 Richard F. Humphreys, the father of appellee, Susan E. Wiseman, was the owner of a tract of
It is agreed by all parties interested that it was the purpose of the grantor, when he executed the deeds, “to live with his children time about,” as they expressed it, and he did divide his time with them until about fifteen months before his death, on the 2d day of May, 1901, when he became an invalid at the house of his daughter, Mary Echard, where he remained till his death. During the latter part of his life he was very weak in body and mind, and for six months prior to his death he was a complete invalid, so much so that he had to be “fed and attended to like a baby,” as it is expressed by the witnesses. Some time in Eebruary prior to Richard E. Humphreys’ death,
The delivery to Amanda Schreckhise of the deed was, as she says, “to keep in trust, to hold in his lifetime.” All of the witnesses who testify on this subject, including Mary Echard, concur in the statement that the deed was to be kept by Amanda
In 9 Amer. & Eng. Enc. L. (2nd Ed.) 157, it is said: “A grantor may deliver a deed to a third person to hold until after the grantor’s death, and then to deliver it to the grantee. Such a delivery is perfectly valid, but the deed must be left with depositary without a reservation by the grantor, expressed or implied, of the right to retake it or otherwise control its use. In support of this proposition of law a large number of cases from seventeen different States are cited, and none are cited to the contrary. Among the cases cited is Trash v. Trash, 90 Iowa, 318, 57 1ST. W. 841, 48 Amer. St. Reports, 446, in which it is said: “It is well settled, and may be said to be an established rule, that a deed may be delivered to a third person for the grantee, and, if subsequently assented to by the grantee, it will be as good a delivery as if made directly to the grantee; provided there is no reservation of a right in the grantor to countermand it.”
In White v. Pallock, 17 Mo. 467, 22 S. W. 863, 38 Amer. Dec. 671, the opinion says: “A deed need not be delivered to the grantee in person. A deed delivered by the grantor to a third person to be delivered to the grantee, and by such third person delivered to the grantee, will constitute a good delivery, though the
The doctrine enunciated in the foregoing authorities is recognized and sanctioned hy this in court in Frank v. Frank, 100 Va. 627, 42 S. E. 666, the opinion saying: “Where a deed is left with a third person with instructions to hold it until the grantor’s death, and then to deliver it to the grantee, the weight of authority seems to he in favor of the doctrine that if there is no reservation hy the grantor of the privilege of recalling the deed before his death, but if he delivers it to the depositary with the absolute and final determination that it shall take effect when the contingency of his death happens, it will become operative upon its delivery, after his death, to the grantee, and such delivery will relate back to the prior delivery for the purpose of passing the grantor’s title.” Wheelwright v. Wheelwright, 2 Mass. 454, 3 Am. Dec. 66; Shep. Touch. 57, 58.
In the case at bar, as we have seen, the delivery of the deed to Amanda Schreckhise was unconditional. There was no reservation of a right to recall the deed. It was placed in her hands to be delivered upon the grantor’s death to the grantee, and the delivery was not made, because of the return of the deed
We are of opinion that the delivery of the deed in question to Amanda Schreckhise for delivery to appellee after the death of the grantor, was a sufficient delivery in law to pass to appellee title to the land thereby conveyed.
This deed and its delivery being sufficient to pass the title to the land to appellee, the only question remaining is whether the appellant had such notice of it as rendered the deed to her of April 25, 1901, null and void as to appellee ?
The bill filed by appellee to have declared null and void the deed of April 25, 1901, and to remove the same as a cloud upon her title to the land in question, charges that her deed was obtained from the hands of Amanda Schreckhise by fraud; that the destruction of it was a fraud upon her right, and that appellant was a party thereto, or knew of the fraud at the time.
Affirmed.