125 P. 267 | Or. | 1912
Lead Opinion
Opinion by
So far as disclosed by the evidence, the deed in this case is an ordinary warranty deed and contains no conditions for reservations. The condition as to the disposition of the deed was oral, by which the deed was to be held by Mary Thrush, and the evidence as to the terms thereof is somewhat conflicting.
“They (the deeds) were laying on the table, and after dinner was over Mr. Wells gathered those deeds up and handed them to father and father handed them to me and told me to take care of them until he called for them, and until after his death, and then to be handed to the boys if he did not call for them.”
Also Nina Baldwin, a granddaughter of Abram Thrush, who was a witness to the deeds, testified that Abram Thrush delivered the deeds to Mary “to put away and keep for him until he called for them, or until after his death to give them to the boys.” To the contrary is the testimony of Mrs. Ella Jenney, also a grand
“Q. Did your grandfather say anything about taking care of them for him or for the boys?
“A. She was to take .care of them for the boys, not for him, but for the boys, and hers for herself. * * He said the deeds were not to be recorded until after his death, and then they were to be turned over to each one, and they would have their own recorded.”
Abram Lincoln Thrush came to the house just after the execution of the deeds, while the family were at dinner. He testified that:
“My father said that he concluded to have his papers made out just as he wanted them made out; he wanted to deed this land over to the children; that he deeded me 100 acres of the Sam Belieu place. * * Father said them deeds should not be recorded until after his death, * * and he was to have all the proceeds that came off the place. * * He said- Mary is to hold the deeds; they are there in the chest, until after his death, and then each one take his own deed and have it recorded.”
Mr. W. R. Wells, a justice of the peace, drew the deeds and took the acknowledgments thereto, and Abram Thrush consulted with him as to the manner of disposing of his property, whether by deed or by will, and Mr. Wells advised him that:
“If he made deeds, the deeds could be delivered to some party to hold until his death, and then they could be delivered over, and there would be no cost to it, and that is the way he decided to do it. * * I put the deeds * * in an envelope and handed them to Mary, according to his instructions, to hold the deeds until his death, and then deliver them to the parties that they were drawn to.”
Other witnesses testified to the fact that Abram Thrush said to them that the deeds were delivered to
The preponderance of the evidence is convincing that the deeds were delivered unconditionally to Mary Thrush to be held until her father’s death, and then to be delivered to the grantees, and they were beyond the control of Abram Thrush. Therefore the destruction of the deed by the grantor did not affect its operation or revest the title in him. Chambers v. Stewart, 2 Ohio N. P. 287; Ellington v. Currie, 40 N. C. 21; Bury v. Young, 98 Cal. 446 (33 Pac. 338: 25 Am. St. Rep. 186). See Munro v. Bowles, 187 Ill. 346 (58 N. E. 331: 54 L. R. A. 865, note “e,” page 903).
Plaintiff was entitled to the decree given in the circuit court and the decree is affirmed. Affirmed.
Rehearing
Decided October 15, 1912.
On Rehearing.
(126 Pac. 994.)
Opinion
The decree of the circuit court is reversed, and a decree will be entered for defendant, with costs.
Reversed on Rehearing:
Further Rehearing Denied.