23 Colo. App. 154 | Colo. Ct. App. | 1912
A decree was entered in the district court in favor of the plaintiff, Brunt, giving him the ownership in fee and possession of certain real' property, upon a complaint alleging that his wife gave him a deed for it before she died, and that the deed was lost or destroyed, and never recorded. The defendant, Blanch Walker, wife of Horace W. Walker, and daughter of Brunt’s wife by virtue' of a former marriage, claimed an interest in the same property by inheritance. Hewett Green, another child of Mrs. Brunt by virtue of the former marriage, and brother of Blanch Walker, was also a defendant, who claimed an equal interest with his sister, but the record does not disclose whether he was satisfied or dissatisfied with the decree. Blanch Walker and her husband are the appellants, and ask a reversal of the decree upon sixteen assignments of error discussed under the following propositions:
2. Appellants contend that the evidence does not clearly and satisfactorily show an intention on the part' of the wife to deliver the deed for the purpose of vesting a present title in her husband, and such contention presents a problem not susceptible of any satisfactory solution, in view of the finding of the lower court, except to adopt such finding on the ground that a question of law and fact was involved that was resolved by the lower court in favor of the appellees. The deed was executed October 22, 1898, from the wife to the husband, and left in the safe of Mr. Andrews, the attorney and notary
“As no particular form of delivery is required, the question whether there was a delivery of a deed or not so as to pass title must in a great measure, where it is not clear that an actual delivery has been effected, depend upon the peculiar circumstances of each particular case. The question of delivery is one of intention, and the rule is that a delivery is complete when there is an intention manifested on the part.of the grantor to make the instrument his deed. ‘The doctrine seems to be settled beyond reasonable doubt,’ remarks Justice Atwater, ‘that where a party executes and acknowledges a deed, and afterward, either by acts or words, expresses a will that the same is for the use of the grantee, especially where the assent of the grantee appears, to the transaction, it shall be sufficient to convey the estate, although the deed remains in the hands of the grantor. The main thing which the law looks at is whether the grantor indicates his will that the instrument should pass into the possession of the grantee; and if that will is manifest, then the conveyance inures as a valid grant, although, as above stated, the deed never comes into the hands of the grantee.’ A deed does not become operative until it is delivered with the intent that it shall become effective as a conveyance. Whether such intent actually existed is a question of fact to be determined by the circumstances of the case, and cannot in the majority of cases be declared as a matter of law. A deed was held complete and valid where it had been prepared for execution, read, signed, and acknowledged before a proper officer, notwithstanding the testimony of the witnesses*160 present at its execution that there was no formal delivery, and the fact that the deed after the grantor’s death was found among his papers in his desk,” — 1 Devlin on Deeds, 2nd ed., sec. 262, citing Schubert v. Grote, 88 Mich., 650, 26 Am. St. Rep., 316; Stevens v. Hatch, 6 Minn., 64, 76; Hibberd v. Smith, 67 Calif., 547, 56 Am. Rep. 726; Scrugham v. Wood, 15 Wend., 545, 30 Am. Dec. 75, together with numerous other citations.
“Actual manual delivery and change of possession are not required in order , to- constitute an effectual delivery. But whether there has been a valid delivery or not must be decided by determining what was the intention of the grantor, and-by regarding the particular circumstances of the case. Where a father had indicated in various ways that certain property should be bestowed at his death upon his infant son, and for that purpose had executed a deed of which he, however, retained the possession, effect was given to his intention, despite the fact that there had been no manual delivery of the deed. —1 Devlin on Deeds, 2nd ed., sec. 269, citing Black v. Sharkey, 104 Calif., 279; Newton v. Bealer, 41 Ia., 334, and other citations.
“When a deed is executed and delivered its legal effect as to the passing of the title is not altered by the fact that one object of the transaction was to save the expense and trouble of administration upon the grantor’s estate after his death. And where a grantor executed a deed for this purpose to his wife, the fact that she placed the deed after delivery where her husband equally with herself could have access to it does not change its legal effect as a conveyance.” 1 Devlin on Deeds, 2nd ed., sec. 284, citing Le Sawlnier v. Loew, 53 Wis., 207.
‘‘ The question of delivery is a mixed one of law and fact. What amounts to a final delivery and acceptance is a question of law, but it is a question of fact for the*161 jury whether the facts exist which constitute such delivery and acceptance, but the question of delivery or nondelivery, while frequently of a mixed character, partly of law and partly of fact, yet in practice is generally one of fact only.” 1 Devlin on Deeds, 2nd ed., sec. 308, citing Earle v. Earle, 20 N. J. L., 347; Hibberd v. Smith, 67 Calif., 547; 56 Am. Rep., 726; Thatcher v. St. Andrew’s Church, 37 Mich., 264; Hurlbut v. Wheeler, 40 N. H., 73; Burke v. Adams, 80 Mo., 504, 50 Am. Rep., 504.
Prom the case last cited, Mr. Devlin quotes the following :
“What constitutes a delivery of a deed is often a mixed question of law and fact. An arbitrary rule ought not to be laid down. Bach case must stand more or less on its peculiar facts. The intent to convey is evidenced by the fact of making out and duly executing a deed. The delivery may be evidenced by any act of the grantor by which the control or dominion or use of the deed is made available to the grantee.”
“Where the facts are disputed the intention to deliver or time of delivery are to be determined by the jury, and only where it is a positive inference of law can the court decide that there was a delivery.’’ Hunt v. Swayze, 55 N. J. L., 33, 25 Atl. Rep., 850; Shultz v. Shultz, 159 Ill., 654, 20 Am. Rep., 188.
It is assumed that the converse of the last proposition is true. Prom the foregoing statement of the law, it is quite evident that it was within the province of the lower court to find, as a question of fact, or of mixed law and fact, whether there was a delivery of the deed in controversy, and such finding having been made, it will not be disturbed.
3. A reversal is also asked on the ground that the lower court erred' in overruling the motion for a new trial. This motion is based wholly upon the ground that,
A new trial will not be granted upon the ground of newly discovered evidence, if such evidence when produced can be harmonized with the findings of the court and would not counteract or disprove any of the facts upon which such findings are based and would not necessarily produce a different result. This is especially true when the trial is without a jury, as the ruling on a motion of this character, and upon such grounds, is largely within the discretion of the trial court.
The judgment is affirmed.
Scott, P. J., Kikg and IIurlbut, JJ., concur; Cuk-KIKGUAM, J., dissents.
Affirmed.