Onе Julius (Stalting, during and prior to the year 1906, owned and resided upon the S. % of section 13, township 101 north, of range 54, in McCook county, S. D., and did not alienate said land prior to his death, except as hereinafter set out. During the year 1906 Julius Stalting was a widower. Shortly thereafter he removed from South' D'akota, and ultimately to Oregon, where he died intestate in 1922. After his removal from South Dakota, he remarried, and, at the time of his death, left as his heirs his widow, Mary K. Stalting, four sons, Chris, Herman, George, and Albert J., and three .daughters, Mrs. M'ary Kingsley, Mrs. Emma Hoffine, and Mrs. Abbie Collins Chapel. After the death of Julius Stalting, -his widow, Mary, by quitclaim deed, transferred all 'her right, title and interest in his real property to the three sons, Herman, George, and Albert J., in equal shares.
Thereafter two of the sons, Albert J. and George, instituted this action against their coheirs and against Ray Kingsley, Luella Kingsley, O. D‘. Kingsley, Valura Kingsley, and Iona Kingsley (children of Mary Stalting Kingsley and grandchildren of decedent), and against Merle Meyers Hoffine (son of Emma Stalting Hoffine and grandson of the decedent), alleging the death of the decedent intestate, and his ownership at his death of the said S. V2 of section 13, alleging their heirship, and that by virtue thereof they succeeded each to an undivided one-seventh interest in and to said reаl estate, and praying to have their said interests quieted in them against the claims of the defendants, etc. To this complaint Chris Stalting filed a separate answer, claiming title to the E. % oLthe S. W. % of said section 13 by conveyance from Julius Stalting. Abbie Collins Chapel filed her separate answer, claiming title to the 'N|. % of the :S. E. % of section 13 by conveyance from Julius (Stalting. The Kingsley grandchildren filed their separate answer, claiming title to the W % of the S. W. % of said- section 13 by conveyance from Julius Stalting. And the grandchild Merle Meyers Hoffine filed his- separate answer, claiming title to the S. % of the S-. E. & of said section 13 by convеyance from Julius Stalting. And each of the separately answering defendants above named counterclaimed, seek
The only witness who testified with reference to the execution and delivery of the conveyances relied upon by the separately answering defendants was one R. ‘H. Armstrong, called in behalf of the defendants, who testified that he had been for more than 30 years president of a bank at 'Canistota in this state where he resided, and that he was also a notary public; that in 1906 he was acquainted with Julius Stalting, who for a number of years had owned and lived upon the S. % of section 13, township 101, range 54, about five miles southeast of Canistota; that on February 10, 1906, Julius Stalting came into- the bank of the witness at Canistota and told witness that hе desired witness to- prepare four deeds for him covering four different 80-acre tracts, each constituting a part of said S. % of section 13, and told the witness that he desired to deed one 80 to his son Chris Stalting, one 80 to his daughter Abbie ■'Collins, one 80 to the children of his daughter Mrs. Kingsley, and the other 80 to the children of his dаughter Mrs. ’Hoffine, and described the different 8o’s that he wished to deed to each of said grantees.
The witness further testified that at that time, and on that day, in the presence and pursuant to the request of said Julius Stalting, witness prepared four warranty deeds upon blanks in the customary form for such instruments (which deeds we will hereinafter designate in this opinion as deeds 1, 2, 3, and 4, respectively), each of which deeds was dated February 10, 1906. Deed 1 purported to convey from Julius Stalting to- Chris Stalting, for “one dollar and other valuable consideration,” the E. % of the ’S. W. % of said section 13. It was completed by the witness, and signed in his prеsence by the grantor Julius Stalting on the day of its date. Deed 2 purported to convey from Julius Stalting to Abbie Collins,, for the same named consideration, the N'. % of the S. E. ^ of said section 13, and ‘was likewise completely filled out by the witness
The witness testified with reference to .deeds 3 and 4 that the grantor wished to deed the property described in deed 3 to his grandchildren, -being- the children of his daughter Mary Kingsley, and wished it to go to them instead of their mother, .becausе he did not want his son-in-law Kingsley to get hold of any of the property, and the names of said grandchildren were not placed in the -deed as grantees at the date of its making, and prior to its signing, because the grantor did not remember said names. The grantor stated that he desired the property describеd in deed 4 to be deeded to his grandchildren, the children of his daughter Emma Hoffiine, for the same reason, and the name of the grantee was not inserted in that deed, o-n the day of and prior to its signing, for the same reason, that the grantor could not remember it. With reference to the names of the. grandсhildren who were to be the ■grantees in deeds 3 and 4, respectively, the -witness was not entirely positive whether the grantor, Julius Staking, was later to return and furnish the names to be inserted or whether the witness himself was to secure the names and insert them.
After the signing of the four deeds as above set out, the grantor left each of said deeds with the witness, and instructed the witness, as to each -deed, to keep it until after his death, and then deliver it to the grantee. The witness was a notary public at the time said deeds were signed, but he did not on that day place his certificate of acknowledgment upon any of the deеds after their signing by the grantor, nor after their delivery to the witness with instructions to keep them safely and hand them over to the grantees upon the death of Julius Staking. Witness placed the
Upon this state of facts the learnеd trial judge determined that deeds 1 and 2 were valid conveyances, while deeds 3 and 4 were not, and. accordingly entered his decree quieting the title to the E. Y2 of the S. W. Y of section 13 in Chris Staking pursuant to deed 1, and to the N. Y2 °f the S. E. Y of section 13 in Abbie Collins, subsequently remarried, and now Abbie Collins Chapel, pursuant to deed 2. The deсree quieted the title to the other two 8o’s (attempted to be conveyed by deeds 3 and 4) in Chris Staking, Herman Staking, George Staking, Albert J. Staking, Emma Hoffine, Mary Kingsley, and Abbie Collins Chapel, an undivided six sixty-thirds to each, with an additional seven sixty-thirds each to Herman, George, and Albert J., representing the interest of the widow, Mary K. Stаking, previously transferred to them by quitclaim deed hereinbefore referred to.
From so much of this decree as quiets the title to the E. Y2 of the S. W. Y in Chris 'Staking and the N. of the S. E. Y in Abbie Collins Chapel, and from the order denying their motion for new trial, the plaintiffs have appealed. There is really but one question involved in this appeal, and that is a question of fact; namely, What was the intention of the grantor at the time he left deeds 1 and 2 with the witness Armstrong?
The reаl question in the case, then, is one of fact as to the intent of the grantor at the time he left deeds 1 and 2 with the witness Armstrong. Professor Bigelow, in the article above cited, sets out the matter as follows:
“Suppose that A. executes, in favor of B. a deed of Blackacre and gives it to X., and says, ‘This is for B., give it to him at my death.’ What rights arise out of this transaction?
“At the outset a rather difficult question of fact sometimes presents itself. Does A. mean to keep control over his deed so that he still has the right to take it back, with the result that the situation really is that X. is to deliver the deed to B. only if A. does not tell him to do something else with it, i. e., is X. really holding it simply as A.’s depositary; or has 'A. definitely parted with all control over it, does lie regard the transaction as finished so that the matter of B.’s getting the land is only a question of time? If the former view be taken of the facts, the whole question falls. The decided preponderanсe, both of decisions and dicta, is that unless A. relinquishes all control over the instrument at the time of the delivery to X. it differs in no wise from a will, because not until the moment of A.’s death can it be regarded as definitely intended to be operative; and being in substance a will, it must fail of effect because it does nоt satisfy the statutory requirements of a will.”
See, also, 18 C. J. p. 208; Grilley v. Atkins,
The principles which will guide the court in the determination of the question so arising have been outlined by this court in the cases of Trumbauer v. Rust, 36 S. D. 301,
“It is true that, in answer to. a question by counsel, the notary says he should have redelivered the deeds to the grantor had the latter, in his lifetime, demanded them; but this statement appears to hаve been no more than the witness’ interpretation of his duty in the premises, and is without support in the instructions given him by the grantor, or in the circumstances surrounding the execution and deposit of the papers. He testifies without qualification that the deeds were left with him ‘to be delivered after Mr. White’s death.’ ”
To the same effect see Dean v. Parker,