Brink v. Gould

By the court, Miller, P. J. —Delivery is essential to the validity of a parol gift. Without a delivery, title does not pass, and a mere intention or naked promise to give, without some act to pass the property, is not a gift (2 Kent Com., 438). The donor must part not only with the possession, but with the dominion of the property (2 Kent Com., 439). And the gift is only perfect and irrevocable by delivery and acceptance (2 Kent Com., 440, see also Grangiac agt. Arden, 10 Johns., 296 ; Huntington agt. Gilmore, 14 Barb., 246; Woodruff agt. Cook, 25 Barb., 512; Harris agt. Clark, 3 Com., 113). The principles laid down are quite familiar and applying them to the facts presented in the case at bar, I am unable to see how the plaintiff can recover, and am inclined to think that the court were in error in refusing the motion made by the defendant for a nonsuit. The plaintiff claimed the property as a gift from her mother, and it appeared upon the trial, that the plaintiff’s mother was the owner of the two heifers, and that in the month of February, 1867, in a conversation with the plaintiff at the mother’s residence where the heifers were, she told the plaintiff that she could have whichever one of the heifers she wanted. No response was made to this. The heifers were not present, and no designation was made by the plaintiff of either of them, at that time. The plaintiff did not live at home, but was away teaching sóhool, and did no act to take possession of the heifer. The plaintiff neither received nor did her mother deliver the property to her at t)ie time the alleged gift is claimed to have been made. There was no such acceptance and delivery as the law requires. [300] The subsequent acts do not, in my opinion establish, or-tend to prove any facts which obviate the difficulty. The plaintiff was soon afterwards. married, and in the month of . March -following, her husband and father and mother, made a contract for a farm, to which the father and mother removed with the two heifers and other stock which had remained . in their possession, and about the first of April the plaintiff and her husband also went there. The farm was then worked by the plaintiff’s husband and her father and mother jointly, and in April, 1868, the plaintiff’s father executed a chattel mortgage upon the heifer and other property under which the defendant claims title, and took the samé in the month of January, 1869. During the period that the plaintiff and her husband were in possession of the farm with her father and mother, she exercised no distinct -act of ownership over the property, nor made any especial claim of title, to wit: It was these the. same as other stock, and there is no evidence ot a delivery of the property to her alone. Certainly there was no such delivery, as the law requires to establish a gift within the meaning of the law. There is in fact, nothing in the case to show any change in the possession of the property after the alleged gift, except the fact that the plaintiff and her husband worked the farm in conjunction with her father and mother. This is not sufficient to make out a valid gift, or to raise any question of fact for the jury upon that subject. Four other questions are made, but inasmuch as there was error for the reasons stated, in refusing the motion for a non-suit, it is not necessary to .discuss them. .* Judgment and order appealed from reversed, and a new trial granted with costs to abide the event.