140 Mich. 187 | Mich. | 1905
Plaintiff is the son of defendant Harriet by a former husband, Stephen Wilbur, who died in 1901. He claims that Stephen Wilbur at his death was the owner of the land in controversy, which is now occupied by the two defendants, and he brings this action in ejectment to recover an undivided interest in said lands. Prior to 1879 the land belonged to defendant Harriet. Early in that year said Harriet, while confined to her bed by illness, though concededly in a condition to understand and comprehend what was done, executed a deed which in form conveyed this property to the plaintiff, and plaintiff and wife executed a deed in form conveying the same to his
The trial court refused to permit defendant to prove statements of her deceased husband indicating that the intention in making the deed was to vest the title to the land in that one of the two married parties who should survive the other; that is, if Stephen outlived his wife, he was to record the deeds, and thereafter to own the property, and, if his wife outlived him, she should destroy them and “hold the place.” This evidence was properly excluded under the authority of Dyer v. Skadan, 128 Mich. 348; Dawson v. Hall, 2 Mich. 390; Tabor v. Tabor, 136 Mich. 255.
The trial court also refused to permit defendants to prove that, several years after the execution of these deeds, Stephen Wilbur declared in express words, and indicated by his acts, that his wife owned the land in controversy. We are not called upon to determine whether this testimony had any tendency to disprove the fact testified to by
In this connection we may properly consider another and similar question on this record, viz., Had defendant Harriet a right to testify that, at the time the deed was manually delivered, she did not intend that the title of the property should pass ? In determining the admissibility of this testimony, it is to be assumed, then, that a deed (which in form was a present grant) was in fact in the grantor’s presence manually delivered to the grantee, and was by him formally accepted and retained, and that nothing was said or done at that time which in any way tended to qualify the legal effect of the acts and conduct of the parties. In determining this question, we should also bear in mind that but one inference can be drawn from these acts and conduct, viz., that there was a legal delivery of the deed. See Dawson v. Hall, 2 Mich. 390. Nor is this inference in anyway affected by the circumstance that at the time of said manual delivery the grantor was ill, for, when plaintiff undertook to prove that the grantee “understood and comprehended what was done,” defendants’ counsel said: “No claim to the contrary, no claim but what she was in her right mind. ” The question for our consideration, then, is this: Is it competent to prove that either of the parties entertained a secret and undisclosed intention that the delivery of the deed should be ineffectual to transfer title ? The question for our determination is not, as in Schuffert v. Grote, 88 Mich. 650,
In a case somewhat like this it was said:
“ Subsequent statements of a party’s motives or intentions will not be received to affect the rights of others or to explain a transaction. It is only the intention declared at the time of such transaction which, as a part of the res gestae, can bind the defendants. An exception to this rule exists only when the statements are made to a party to be affected by them under circumstances from which his acquiescence in their truth can be fairly inferred, if not expressed, and then they are entitled to little or much consideration according to the circumstances under which they are made.” Dawson v. Hall, 2 Mich., at p. 393.
Stevens v. Stevens, 150 Mass. 557—an authority relied upon by defendants — is much in point. There the grantor, unlike the grantor in the case at bar, was a competent witness. She testified that no delivery was made, and it was held that she might also testify that she never parted with the possession of the deeds with the intent that they should take effect. There, it will be observed, the grantor was permitted to testify to an intent in harmony with her nets. That it was not intended to hold that she might
“A concealed intention that a delivery made with such formalities or declarations or under such circumstances that the grantee believed and was justified in believing that the manual transfer was made with the purpose of passing the property to him, and accepting it as such, could not prevail against the intention expressed or fairly to be implied from the declarations or conduct of the grantor.”
Wilson v. Wilson, 158 Ill. 567, relied upon by defendants, is not in point. There it was held that the formal delivery to the grantee did not transfer title, the court saying:
“ It seems clear that this deed was placed by her father [the grantor] in the hands of Lizzie Elson [the grantee] with the mutual understanding that, if he at any time desired to withdraw it, she should return it to him.”
In that case the mutual understanding referred to was proved by competent testimony. It was not held that it could be proved by evidence of a secret, undisclosed intention at variance with the legal effect of the acts and conduct of the parties.
Plaintiff proved by admissions of defendant Harriet that she had destroyed the deeds heretofore referred to. Complaint is made because defendant Harriet was not permitted to testify to other statements accompanying said admissions, which related to matters within the knowledge of her deceased husband. This testimony was incompetent, under section 10212, 3 Comp. Laws, and was not admissible unless plaintiff, by proving said admissions, had waived his right to object to its introduction. Defendants insist that he had. It is true, we have held (see Smith’s Appeal, 52 Mich. 415; Lilley v. Insurance Co., 92 Mich. 159) that when the personal representative or heir of a deceased person, being a party to a suit, proves certain admissions of the opposite party, he’thereby waives the right to object to that party testifying to matters equally within the knowledge of the deceased. In these cases, however, the admission proved related to some matter
Defendants contend that, in any event, the trial court erred in not submitting the case to the jury. It is not denied — indeed, it is apparently conceded — that the deeds were actually executed as contended by plaintiff, and were at once formally delivered to the grantee, and that at this time the grantor was in her right mind, and understood and comprehended what was done. It is contended, however, that the jury might have found that defendant Harriet did not know of, and did not consent to, said formal delivery. And in this connection it is urged that there is a discrepancy in the testimony of the witnesses as to whether the deeds were formally delivered in the bedroom where the grantor was lying, or a few feet away, in an adjoining room. In no view that may be taken of the case is this discrepancy of importance. If the testimony of any of these witnesses is credited, there was a legal delivery. If the testimony of all is discredited, there is no testimony tending to prove that there was no delivery, and in the absence of such testimony the law will presume a delivery from the possession of the deed by the grantee. Dawson v. Hall, 2 Mich. 390.
The judgment of the circuit court is therefore affirmed, with costs.
