Williams v. Daubner

103 Wis. 521 | Wis. | 1899

Bardeen, J.

The facts in this case are in no substantial dispute. Mrs. Williams executed the deed in suit, and delivered it to Mr. Daubner to hold, upon the understanding that if she recovered from her sickness she was to have it back, and, if not, then it was to be delivered to the grantee named. The sole question is, Was this deed in the hands of Dembner beyond her control ? This case is ruled by Prutsman v. Baker, 30 Wis. 644. The cases do not differ in any essential particular as to the circumstances under which the deed came to the possession of the depositary and under which he was to hold it. It is true that in that case the depositary testified that the papers were under the grantor’s control until he died, but that was merely his conclusion from tlie facts stated, and did not give any additional weight thereto. In determining that the facts stated did not constitute a valid delivery of the deed, Chief Justice Dixon says: “An essential characteristic and indispensable feature of every delivery, whether absolute or conditional, is that there must be a parting with the possession and of the power and control over the deed by the grantor for the benefit of the grantee, at the time of the delivery? The importance of these essentials has been recognized and enforced in this court in the following cases: Campbell v. Thomas, 42 Wis. 437; Schmidt v. Deegan, 69 Wis. 300; Albright v. Albright, 70 Wis. 529; Lehigh C. & I. Co. v. West Superior I. & S. Co. 91 Wis. 221. As sustaining the doctrine of the Drutsmcm Case, and in addition to the cases therein cited, we refer to the following: Baker v. Haskell, 47 N. H. 479; Williams v. Schatz, 42 Ohio St. 47; Porter v. Woodhouse, 59 Conn. 569. The principle emphasized is that the delivery of the deed not being absolute, or conditional so as to be beyond the grantor’s control, and the depositary being a mere agent, the instrument is revocable at any time before the grantor’s death, and is therefore a nullity.

The principles stated seem to fully cover the case at bar, and render extended discussion unnecessary. Under the circumstances in proof, and within the authorities cited, we cannot escape the conclusion that the deed in the hands of Daubner was under the control of the grantor up to the time of her death, and therefore no legal delivery thereof has or can be made.

By the Court.— The judgment of the superior court of Milwaukee county is reversed, and the cause is remanded with directions to enter judgment for the plaintiff for the relief demanded in the complaint.