| Wis. | Jun 15, 1863
In tbe most favorable view wbicb can be taken of tbe evidence in tbis case for tbe respondent, be must fail in tbe action. For, assuming that Mrs. Strong gives tbe correct version of tbe transaction, tbe most that can be said is, that there was an unexecuted gift. Sbe testifies that when her father gave her tbe mortgage, be did not deliver tbe note. Indeed, as a matter of fact, the note never was in her possession br under her control, but always remained in tbe possession or under tbe control of her father after it was paid in November, 1860. About tbis there is no dispute.. Now we suppose it to be a very clear proposition, that a delivery of the note was essential in order to pass title and give effect to the gift. Tbe note was tbe principal, the mortgage tbe accessory. While tbe note remained in tbe possession of tbe father, tbe gift was revocable. Upon tbis point chancellor KENT lays down tbe law in tbe following explicit language : “ Gifts inter vivos have no reference to tbe future,' and go into immediate and absolute effect. Delivery is essential both at law and in equity to tbe validity of a parol gift of a chattel or chose in action; and it is tbe same whether it be a gift inter vivos or causa mortis. Without actual delivery, tbe title does not pass. A mere intention or naked promise to give, without some act to pass the property, is not a gift. There exists tbe locus pceniteniice so long as tbe gift is incomplete and left imperfect in tbe mode of making it; and a court of equity will not interfere and give effect to a gift left inchoate and imperfect.” 2 Kent, 554, Eighth Ed. (marg. p. 438.) Again be says: “Delivery in tbis, as in every other case, mustbe according to tbe nature of a thing. It must be an actual delivery, so far as tbe subject is capable of delivery. It must be secundum subjectam materiam, and be tbe true and effectual way of obtaining tbe command and dominion of tbe subject. If tbe thing be not capable of actual delivery, there must' be some act equivalent to it. Tbe donor must part not only with tbe possession, but-with tbe dominion of tbe property. If tbe
It appears to us that these principles of law are perfectly decisive of this case. It is not pretended that there was any delivery or assignment of the note in question. Even in the assignment of the mortgage it is not mentioned. The transfer was not actually executed. Parsons had not parted with his possession or control over it, but could retain it, destroy it, or deliver it up to his co-maker, as he in fact did do. This being the case, of course the title never passed to Mrs. Strong, and she could not transfer it to another.
The counsel for the respondent says that to sustain the defense is giving judicial sanction to a fraud on the part of Parsons. , According to his statement, he never intended to give the note and mortgage to his daughter. But no matter. Suppose he promised to give them to her and intended giving them, yet, if he did not execute this intention by actually transferring the note, we cannot gi ve effect to the gift. , He has a legal right to revoke it, however ungenerous or reprehensible the act may be upon moral grounds.
The judgment of the circuit court is reversed, and the cause remanded with directions to dismiss the complaint.