61 So. 807 | Ala. | 1913
Lead Opinion
“A grantor may deliver a deed to a third person, to hold until 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 the depositary without a reservation by the grantor, express or implied, of the right to retake it or otherwise control its use.” — 9 Am. & Eng. Ency. Law, 157, and numerous authorities there cited. Our own court, in the case of Fitzpatrick v. Brigman, 130 Ala. 450, 30 South. 500, speaking through Justice Txson, said: “For so long as he reserves to himself the locus pcenitentise, there is no delivery — no present intention to divest himself of the title to the property. We take it that the grantor need not expressly reserve to himself this right to repent ; but if his act, upon which a delivery is predicated, does not place the deed beyond his control as matter of law, then his right of revocation is not gone.”—Frisbie v. McCarty, 1 Stew. & P. 56; Foster v. Mansfield, 3 Metc. (Mass.) 412, 37 Am. Dec. 154; Griswold v. Griswold, 148 Ala. 241, 42 South. 554, 121 Am. St. Rep. 64; Gulf Cedar Co. v. Crenshaw, 169 Ala. 606, 53 South. 812.
There was evidence from which the jury could infer that Campbell made the delivery to Seeley with the present intention of divesting himself of the title to the property, to take effect after his death, and that he placed the deed beyond his control. See admissions of Seeley to Jas. B. O’Dowell. It is true that Seeley testified that it was understood between him and Campbell that the papers were to be returned to the grantor Campbell if he got well, but the jury could infer from
Of course, if Dr. Campbell delivered the papers to Seeley only for safe-keeping, and to be delivered to the grantees after his death, and with the understanding that Seeley was to restore them to him in case he got well, then the delivery was conditional, and the grantor did not lose his right of revocation. The facts in the case at bar differentiate it from the case of Arrington v. Arrington, 122 Ala. 510, 26 South. 152. There the grantor delivered the deed to the mother of the grantees as trustee for them to be delivered to them after his death, but stated that, if the mother survived him, he would look after them for the children, meaning that he would undertake to do what the mother was to do, and not that he reserved the right to recall the deeds for his own benefit, or that he reserved the control over same or made the delivery to the mother subject to his option to repent and reclaim the deed. In the instant case the delivery to Seeley was either to have him carry out the written instruction to deliver the papers after his death and with no intention that they would be restored to him, or that Seeley was to keep and deliver, in case he did not survive the existing illness, but was to return them to him, not as a trustee for the grantees, in case he got well. If the jury believed the first
It is also suggested that there is not such an insistence in appellant’s brief as to charge 6 and 7 as Avill warrant this court in considering same. They involve practically the same legal principle as charges 4 and 5, which are argued at length under the assignments addressed to said charges 4 and 5, and Avhich said argument relates to charges 6 and 7 also.
The judgment of the law and equity court is reversed and the cause is remanded.
Reversed and remanded.
Concurrence Opinion
(concurring). — I concur in this decision for the reason that this court and many other courts seem to be too far committed to the erroneous doctrine to change it by judicial decision. To change it uoav would be for the court to make laAV, not to declare it, Avhich, of course, is not a function or office of the courts. The change should be left to the Legislature, which has wrought many along the same lines'.
But for the fact that the rule complained of is a
.No stronger case to prove this result could he found than the one now under consideration. Here the grantor was asked if he desired to make a will; and he replied that it was of no use, that he had disposed of his property by deed, and placed the deeds in the hands of his friend, each in a separate envelope, addressed to the respective grantees, with instructions to deliver them at his death if not called for. They were never
The rule here and uoav proves itself to be what it has ever been and always will be — a mere snare or trap in which to catch honest and innocent grantors who desire to dispose of their property honestly and economically. There is not, and probably never Avill be, an instance where, the rule having been invoked, the honest Avill and. intention of the grantor is not defeated, and his property thus given to those whom he did not desire to receive it. Of course, the case of which I am speaking is the one in Avhich- the grantor never calls for the deeds, and dies, believing he has disposed of his property as he wishes.
The rule also opens the door to the grossest of frauds. It alloAVS the will of the grantor, expressed in the most solemn form, and in writing, to be defeated by the slightest parol proof that at the time of the delivery to the depositary he intimated that he might thereafter call for them, and, if he should do so, that the delivery should not be perfected. The slightest parol proof is thus allowed to defeat the most solemn form of written evidence as to title, and to do so years thereafter, even after the deeds have been recorded, and the grantees
To illustrate, by applying the rule to the case in hand: It is made certain that the rule may defeat the honest and innocent will of the grantor, and confer title upon those who have no moral or legal right to the property, other than that the erroneous rule confers. Suppose the depositary in this case had delivered the deeds, as was done in the Culver Case, and the grantees had recorded them, and had conveyed the lands to innocent purchasers; and years after, in a suit involving the title to the lands in question, he should come into court and swear that when the grantor left the deeds with him he said he might call for them, and he might not, that, if he did not deliver them to the grantees, and that the deeds never being called for, and the grantor having died, he delivered them as instructed. Under this rule, the titles of these innocent purchasers would be absolutely destroyed, and without fault on their part or on that of any other person. For this reason it is well that this litigation is started early, so that as few people as possible may be deprived of their rights by the operation of this rule. So long as the grantor is living, and there has been no absolute delivery to the grantee, no injustice results from holding that such a deposit of the deeds does not constitute
Such a prevarious condition of titles should not be allowed to longer remain.