144 P. 1094 | Utah | 1914
This action involves the ownership of real estate in Salt Lake City, of shares of the capital stock of the Utah or Utah-Idaho Sugar Company, and a few shares of the capital stock of an orchard company at Provo. ■ Moses Davis, a widower residing in Salt Lake City, had but one son, David J. Davis, and but one daughter, Rachel S. Davis, both of whom were over the age of twenty-one years. He purchased the real estate on the 13th of August, 1900. A warranty deed of conveyance was then made in his name and delivered to him. He took possession of the property, and, with his daughter, occupied it. On the 1st of September, 1900, he, by warranty deed, conveyed it to his daughter.
“Unless you deliver the deed, she can’t get any title; you must deliver the deed to her now; then she can do as she wants with it — put it away or destroy it, or anything else.”
The father and daughter were both present. The con-veyancer thereupon drew a warranty deed conveying the property to the daughter by the father. The father signed and acknowledged it, and then in the presence of the con-veyancer handed it to bis daughter. After that, improvements were made on the property and were paid for by him. He and his daughter lived on the property for more than eight years and until he died, she keeping house for him and caring for him. During all that time the property was insured and assessed in his name, and all insurance and taxes paid by him. There is testimony that the daughter in 1908 said that her father “ought to leave me the property,” and after his death, “I am glad father left me the home.” Upon these facts, and the fact that the deed was withheld from record, the plaintiff urges non-delivery of the deed by her father to her, and that it was not, nor intended to be, a grant in prcesenfi. The testimony of the conveyancer, showing an actual and manual handing of the deed by the father to his daughter without reservations or restrictions of any kind,
Now does the evidence show that the father, the donor, when he delivered the stock to the banker, made an unconditional delivery and parted with all present and future control and dominion over the property? It is claimed he did not: (1) Because he, after the delivery to the banker, made an exchange of the stock. But that exchange was made necessary on account of a change in the company. What the donor did in such particular was but to protect and safeguard the property, and was not inconsistent with an absolute delivery and parting- of title. (2) That he, after delivery, collected and used the dividends on the stock. That is sufficiently answered against appellant’s contention in the cases of Boyle, Adm’r, v. Dinsdale, supra; Calkins v. Equitable Bldg. & L. Ass’n, etc., supra; and McNally v. McAndrew, supra. (3) Because of the testimony of the banker, who, in response to the question asked him on cross examination, “he [the father] retained the right at all times to’ come to you and withdraw those escrows?” answered “I assumed that; that he had that right. Q. But you did permit him to do it on a former occasion? A. On one occasion, possibly twice.” He further testified that the daughter on that occasion may have come to the bank with the father, but that she did not come to the desk where the witness was. On redirect he was asked and answered:
*233 “Upon wbat do you base your statement you presumed Mr. Davis [the father] had the right of recalling or withdrawing those? A. Because I let him do it. Q. You let him do it on'one or two occasions when he made exchange and brought back other stock? A. Yes; he said he wanted to make some change in the stock, is my recollection. * * * Q. Was, anything said by Mr. Davis at any time when he left those envelopes that he reserved the right to withdraw them? A. Not to my recollection. Q. You merely concluded that he had the right, being the donor, and let him exercise the right? A. Correct.”
It is thus apparent that the statement of the witness that the father “retained the right to withdraw the escrows” was based, not on anything said or done by the donor when the stocks were left with and accepted by the witness, but on his mere assumption that the donor thereafter made the exchange, not of certificates of stock in one company for those of another, but stocks representing one and the same interest, made necessary on account of a change or merger of companies. We, therefore, think the gift good, and that title passed from the father to the daughter and hence from her to Taylor.
The plaintiff contends that the value was greater, and hence that he was entitled to a greater judgment, the amount prayed for, $350. Both parties concede that the evidence as to quantity, quality, and value of the furniture was very uncertain and indefinite. The appellant says “it was impractical to arrive at its actual value at the date of its conversion/'’ when sold by Taylor, and states that, “under the evidence, it was shown that the value of the furniture was considerably in excess of the amount prayed for.” But he does not point or refer us to anything, except a check given by the father for $133.40 to a furniture company in 1899, ten years before his death, but which does not disclose, nor
We, therefore, think the judgment should be affirmed, with costs. Such is the order.