132 Wis. 73 | Wis. | 1907
There can be no doubt that the several ■deeds from Peter Wells to bis children and grandchildren were executed at the time and in the manner and contained the recitals mentioned in the foregoing statement. The ■court found, in effect, that Peter Wells made and executed the deed to Thomas B. Wells of his own free will, and that the same was not procured by undue influence or fraud exercised over or practiced upon him by Thomas B. Wells or any ■other person acting in his behalf, and that Thomas B. Wells did not exercise any undue influence or any persuasion whatever over said Peter Wells to induce him to make or execute said deed. Such finding is sustained by the evidence. The mental competency of Peter Wells to transact the business in question cannot be seriously doubted. True, he was upwards of eighty-seven years of age and his eyesight was badly impaired at the time of executing the deed, but the deeds were all voluntarily made according to his directions and apparently without the knowledge of any of the several grantees as to the contents of any of such deeds.
As indicated in the foregoing statement, the deed to Thomas B. Wells was annexed to a written memorandum or direction signed by Peter Wells, to the effect that the same should, five days after his death, be delivered by the executor (Henry Ludlow) to his son Thomas B. Wells, or his heirs at law, and that he have possession of the property described therein, and then such deed, with such memorandum attached, was placed by the said Peter Wells in a separate envelope. The same was true as to each of the deeds to the other surviving children named therein. Then each and all of said envelopes containing such deeds, with such memo-randa attached, were placed in a large box envelope, upon which was written, at the direction of said Peter Wells: “In
“In some cases the deed is held to operate presently, though placed in the hands of a stranger with a direction to deliver it to the grantee at some future day or upon some certain event. In such cases, if there be no condition connected with the delivery to the grantee, the happening of which must by the terms of the authority in the receiver precede such delivery, the title passes at once to the grantee.”
While such statement was not essential to the decision made in that case for the reason that the deed was there found to be within the control and subject to the authority of the grantor during his lifetime, still the proposition mentioned is abundantly supported by the adjudications from Massachusetts and New York there cited. Wheelwright v. Wheelwright, 2 Mass. 447, 452; Foster v. Mansfield, 3 Met. 412; Tooley v. Dibble, 2 Hill, 641; Hathaway v. Payne, 34 N. Y. 92, 106. In the first of these cases Parsons, C. L, said:
“If a grantor deliver any writing as his deed to a third person to be delivered over by him to the grantee on some future event, it is the grantor’s deed presently, and the third person is a trustee of it for the grantee.”
Two of these cases are quite similar to the case at bar. In one of them two deeds were executed and acknowledged and then delivered to the scrivener with direction to “retain
“deed purporting to convey to his son a farm, placing it in the hands of E. with instructions to deliver it after the father’s death, but not before unless both parties called for it, and after the father died B. delivered the deed accordingly. Held, that the title of the son took effect by relation from the time the deed was left with B., and that the son’s quitclaim deed executed intermediate the leaving of the deed with B. and the father’s death, though importing a mere conveyance of the son’s right of expectancy in the land, would pass his title.” Tooley v. Dibble, supra.
A recent text-writer, after stating that the question whether a deed duly executed and acknowledged and then delivered into the custody of a third party is to' be regarded as an escrow or a present deed “will depend upon the intent of the parties, and the words used and purposes expressed as indicative of that intention,” draws this distinction as being recognized by the cases:
- “If the payment of money or the performance of some other condition is the circumstance upon which the future delivery is to depend, the instrument is an escrow; but where the future delivery does not depend upon the performance of any condition, but it is deposited with a third person -merely to aw-a&t the lapse of time or the happening of some contingency, it will be deemed the grantor’s deed presently.” 1 Devlin, Deeds (2d ed.) § 319.
This court has held:
“Where a deed is duly executed and delivered by the grantor to a depositary in the presence of the grantee, without any reservation of control, and with the intention and understanding that such depositary is to retain the custody thereof*82 until the grantor’s death and then deliver the same to- the grantee, it is the grantor’s deed in prmsenti from the time of such deposit, and the depositary thereby becomes the trustee of the grantee.” Albright v. Albright, 70 Wis. 528, 36 N. W. 254.
In that case it was held that the subsequent destruction of the deed by the grantor did not divest the title of the grantee, who was his wife. Id. The same principle was recently applied by this court in a case where the grantor, a bedridden man, deposited the deed, running to another person, with his wife, with the necessary intent to place the instrument out of his own control for the benefit of the grantee named in the deed. Kittoe v. Willey, 121 Wis. 548, 99 N. W. 337.
The case at bar comes squarely within the principles of the cases cited. The deed in question was deposited by the grantor with Henry Ludlow under the circumstances stated, and the same was retained by him until five days after the death of the grantor, and then in pursuance of his written directions he delivered the same to the defendant Thomas B. Wells as mentioned. We are constrained to hold that upon such delivery to Henry Ludlow the deed became the present deed of Peter Wells, and that upon the delivery thereof by Henry Ludlow to Thomas B. Wells the title to all of the real estate therein described became vested in him absolutely and in fee, as held by the trial court.
By the Court. — The judgment of the circuit court is affirmed.
