93 Wash. 326 | Wash. | 1916
Action to quiet title to real estate. The facts are as follows: Plaintiff is the son of Mrs. Sarah Jane Sho
“Well, this was some time two or three weeks I think after she [Mrs. Cook] was taken sick. I went into the bedroom— always went and talked to her — she says, ‘Frank,’ she says, ‘I am not going to get well.’ I says, ‘Mother, you don’t want to think about that.’ ... I told her then ‘You don’t want to think that way,’ says I. ‘You must remember you are old and cannot recover as quick as a younger person.’ ‘Well,’ she says, ‘I know I ain’t going to get well,’ she says. ‘And I want you to straighten up my business.’ And she told me the box, what the contents was, and she spoke about some insurance policies, and she says, ‘There is a box in there with nearly forty dollars in,’ she says. ‘There is two deeds there, one for you and one for Mary; and all of the papers are in there.’ And just then the nurse came and she quit talking about it. Q. And then what happened A. Well, there was nothing more said in regard to it at that time. Q. Where was the box at the time you had the talk with her and she said she wanted you to get the box? A. Right in the closet about six feet from the bed. Q. And did she deliver it to you ? A. Yes, sir. Q. And from then did you have a key also to the box? A. Yes, sir. Q. And what did she say about the deeds to you and to Mary, if anything? A. Well, she said there was two deeds in there, one for me and one for Mary. Q. Tell you to take them? A. Yes, told me to take the box.”
This was objected to on the ground that it related to a transaction with a deceased person and was inadmissible as against plaintiff, who claimed title through such person. Counsel for defendants then said, “Your honor cannot consider this testimony in favor of Mr. Spangle, but you can consider it in favor of Mrs. Spangle.” The testimony was then admitted. On cross-examination he testified:
“A. She told me about the box, what was in the box, and her papers and about these deeds, and she told about the box containing nearly forty dollars. She says, ‘My papers are all in there.’ And just then the nurse came in and she quit talking about it at that time. Q. She said all of her papers were in there? A. I am not sure whether she said ‘all of her papers.’ Q. Did you find any of her papers anywhere except*329 in this hox? A. She has a little trunk. I don’t think there were any papers to amount to anything. The main papers were right in this box. . . . Q. Now, if she had wanted you to return that box at any time before her death you would have returned it, would you not? A. If she would have called for it I certainly would. Q. Delivered it to her? A. Certainly. Q. Was there any one else in the room at the time that she delivered this box to you? A. No, not right at that time. The nurse came in just the time she told me to take the box. Q. Now, at the time she gave you the box she told you that she wanted you to take care of her affairs? A. She told me to take the box, that she wanted me to straighten up her affairs or her estate. Of course, I don’t remember just how it was. Anyway she wanted me to settle up her business. . . .”
He did not take the box at that time, but did a few days later, as to which transaction, over the same objection, Mrs. Spangle was permitted to testify as follows:
“My mother asked Mr. Spangle if he had taken this box. Q. What did he say? A. He said no that he had not. Q. And then what was done and said? A. After he came in the door he asked me to get the box. Q. In her presence? A. In her presence. I got the box. I gave it to him. He took it and carried it to the postoffice then.”
There was evidence that Mrs. Cook had told several other persons that she had made these deeds and intended that defendants should have the property. A brother of plaintiff testified that, in 1910, Mrs. Cook spoke to him of these deeds, said that she had fully determined that his father, whom she did not like, should never have the benefit of any of her property, but now that he was dead she had been “thinking it over a great deal,” and, “I may change that yet.”
The court found the facts substantially as we have stated them and, concluding that the deeds in question had never been delivered, entered judgment quieting title to an undivided one-half of the lots in plaintiff and awarded him his costs. Defendants appealed.
Respondent contends that there was no evidence of a delivery of either of the deeds, in that the testimony of neither appellant as to transactions which it is claimed constituted the delivery was admissible under the statute, Rem. 1915 Code, § 1211, because both of them were parties to the record and each testified touching a conversation or transaction had by the witness with the deceased, under whom respondent claims. 1 Appellants concede that neither was competent to testify in his or her own behalf, but insist that each was competent to testify in behalf of the other. The latter view seems to us the sound one. The prohibition of the statute is against a party in interest or to the record testifying “in his own behalf.” Appellants claim title to distinct properties through separate deeds of gift. They might have been sued separately, in which case unquestionably either would have been competent as a witness in behalf of the other, since the other’s separate property alone would have been involved. Foster v. Murphy, 76 Neb. 576, 107 N. W. 843; Hiskett v. Bozarth, 75 Neb. 70, 105 N. W. 990; Helsabech v. Doub, 167 N. C. 205, 83 S. E. 241. In states where the common law right of dower exists a wife, in such a case as this, cannot testify in behalf of her husband. Ayres v. Short, 142 Mich. 501, 105 N. W. 1115. But that is because her inchoate right of dower, unlike the husband’s curtesy, is a present legal interest indefeasable by any act of the husband. Wylie v. Charlton, 43 Neb. 840, 62 N. W. 220.
In the case here, the interest of each spouse in the other’s separate property was certainly no greater because of their being joined in the same action than if they had been sued separately. In neither case was it greater than that of a
Assuming, therefore, that each appellant was competent to testify on behalf of the other, but not on his or her own behalf, was the evidence sufficient to show a delivery of either deed? It is essential to the delivery of a deed that there be a giving by the grantor and a receiving by the grantee with a mutual intention to pass a present title from the one to the other. It may be made through the hands of an agent and it may be accepted through the hands of an agent, but there must be a mutual intention presently to pass the title. This mutual intention is the cardinal requisite. Seibel v. Higham, 216 Mo. 121, 115 S. W. 987, 129 Am. St. 502; Peck v. Rees, 7 Utah 467, 27 Pac. 581, 13 L. R. A. 714; Weisinger v. Cock, 67 Miss. 511, 7 South. 495, 19 Am. St. 320; Shults v. Shults, 159 Ill. 654, 43 N. E. 800, 50 Am. St. 188. This is as essential to a deed of gift as to any other. It is elementary that a deed cannot perform the functions of a will, hence cannot be effectually delivered after the grantor’s death. When, however, the grantor delivers the deed to a third person in escrow to be held until the grantor’s death and then delivered to the grantee, the grantor retaining no dominion or control over it, the delivery is valid and an immediate estate is vested in the grantee at the date of the delivery in escrow, subject to the grantor’s life estate. Maxwell v. Harper, 51 Wash. 351, 98 Pac. 756; Loomis v. Loomis, 178 Mich. 221, 144 N. W. 552; Roepke v. Nutzmann, 95 Neb. 589, 146 N. W. 939; Huddleston v. Hardy, 164 N. C. 210, 80 S. E. 158; Dickson v. Miller, 124 Minn. 346, 145 N. W. 112; Criswell v. Criswell, 138 Iowa 607, 116 N. W. 713; Griswold n. Griswold, 148 Ala. 239, 42 South. 554, 121 Am. St. 64; Rodemeier v. Brown, 169 Ill. 347, 48 N. E. 468, 61 Am. St. 176.
While it has often been broadly stated that the law makes stronger presumptions in favor of the delivery of a deed of
“It must clearly appear that it was the intention of the grantor that the deed should pass the title at the time, and that he should lose all control over it. A deed for an interest in land must take effect upon its execution and delivery, or not at all.” Wilson v. Wilson, 158 Ill. 567, 41 N. E. 1007, 49 Am. St. 176.
“Nor is any particular form or ceremony necessary to constitute a sufficient delivery. It may be by acts or words, or both, or by one without the other; but what is said or done must clearly manifest the intention of the grantor and of the grantee that the deed shall at once become operative, to pass the title to the land conveyed, and that the grantor loses all control over it.” Byars v. Spencer, 101 Ill. 429, 40 Am. Rep. 212.
See, also, Shults v. Shults, supra. In every case there must be something from which it clearly appears that there was an intention to make the deed a presently operative conveyance vesting title in the grantee within the grantor’s lifetime. Atwood v. Atwood, 15 Wash. 285, 46 Pac. 240; Fain v. Smith, 14 Ore. 82, 12 Pac. 365, 58 Am. Rep. 281.
So measured, it seems to us that the evidence was wholly insufficient to show a delivery of either of these deeds. We shall consider it first as to the deed in which the wife was named as grantee. Appellant husband, though permitted time and again to state what deceased said at the time of the alleged delivery, did not testify that she told him to deliver the deed to the wife either then or thereafter. True, he testified that she told him one deed was “for Mary.” But he did not say that she told him to give it to Mary, or to hold it for Mary, or to record it for Mary, either then or after her death. There was no act or word from which a delivery in escrow can reasonably be inferred. She expressed
The case of Porter v. Woodhouse, 59 Conn. 568, 22 Atl. 299, 21 Am. St. 131, 13 L. R. A. 64, presents a close parallel to this on the facts. An aged woman owned two houses, in one of which she lived. Several years before her death she made deeds of one of these to P., and of the other to R. On each deed was indorsed the name of the grantee. She placed them in a box in which she kept her will, her bank books, her insurance policies and other important papers, and in which she also had a bag containing $1,000 in gold. The box was kept in a closet in her bedroom. During the last year of her life she told an attendant that she had deeded away the two houses. Having suffered an injury and being apprehensive of death, she told her attendant where the box was and said, “I put that box in your possession. My private papers are
“The delivery of a deed includes not only an act by which the grantor parts with the possession of it, but also a concurring intent on the part of the grantor that it shall vest the title in the grantee. As we are satisfied that Mrs. Hinman never did any act by which she parted with the possession of the deeds for the benefit of the grantees, the question of her intent becomes immaterial.”
Appellants lay much stress upon the assumed delivery by deceased of the key of the box. That circumstance, however, in view of the declared purpose of the delivery of the box, is entitled to little force. Moreover, it will be noted that the witness, though testifying that he had a key, did not testify that deceased gave it to him. From the entire evidence, we are satisfied that the deed was never delivered, even in escrow, with the purpose of consummating the transaction so as to make it a presently operative conveyance.
As to the delivery of the deed in which appellant husband was named as grantee, since his testimony was inadmissible in his own behalf, it cannot aid or be aided by the wife’s testimony. Her testimony to avail must be found sufficient
We find no merit in the contention that respondent was precluded from a recovery in this case because of the fact that, with his mother’s knowledge, this real estate was not included in the probate of Mrs. Cook’s will. Respondent claims by right of his mother’s heirship. The real estate descended to the heirs immediately on Mrs. Cook’s death. Rem. 1915 Code, § 1366. Unless it was necessary to sell it to pay debts,
The judgment is affirmed.
Morris, C. J., Mount, Fullerton, and Chadwick, JJ., concur.