McGraw v. McGraw

Peters, C. J. James McGraw, by deed dated May 15, 1876, conveyed a homestead to his minor son, who by deed dated May 19, 1876, conveyed the same to Catherine McGraw, the wife of James, and both deeds were recorded on the twenty-second day [261] of the same month. If the deed to the plaintiff, Catherine McGraw, was never delivered to her, she cannot recover. We think a delivery is not proved. The further facts are these: The deeds, having been sent for record by the husband, were recorded at his expense and returned to him. He then placed them in a small hand-trunk, in his bed-room, in a file of other papers of his, where they remained till his death, when by the consent of the plaintiff they fell into the hands of the son William. No consideration was paid by the wife. The conveyance was not as an advancement or as security for any debt. The deeds were merely a form to shield the husband against the recovery of fines which were at the date of the transaction likely to be adjudged against him by the state. A very strong fact against the plaintiff is that, although a witness and an intelligent person, she does not disclose a word ever said by the husband to her about the transaction in all his lifetime. She says on cross-examination that the deed was in her possession and is hers, and that is all she says about it. What she means by possession is that she took the trunk at one time. Had there been a delivery she would be enabled to disclose more conversation and details about the deed. It also greatly makes against her, that she applied for an assignment of dower out of her husband’s real estate when he left none but this. It is contended by the plaintiff that she has her husband’s confession of a delivery, by his executing another deed afterwards in which he describes land as bounded on one side by the plaintiff’s real estate, meaning the property in question. That act has its force, no doubt, but we think it is explainable. She was the owner of record — the apparent owner — and the husband’s purpose was to have the world believe that she was the owner. It would be natural and convenient to bound the land in this way. Frank McGraw testifies that he never delivered any deed to the plaintiff, though her title comes through him. It also appears that the plaintiff got more personal allowance upon a representation to the court of probate that she had no real estate. These facts are much stronger against her than any that make in her [262] behalf. The controversy is between her and her husband’s heirs, who are not her children. Judgment for defendants. Walton, Danforth, Emery, Foster and Haskell, JJ., concurred.