Benedick v. Benedick

Opinion by Mr. Chief Justice Sterbett, The controlling question in this case is whether there is any evidence of the delivery of the deed in question that ought to have been submitted to the jury. If there was not, it follows that the learned trial judge erred, and the judgment must be reversed. The deed having been lost, the plaintiff, for the purpose of proving its execution, contents, delivery, etc., called the scrivener who had prepared it about sixteen years before. The witness was old, infirm and of somewhat impaired memory. He [354] testified as to the preparation of the deed and its execution by Sarah Witmyer and her husband, Daniel Witmyer, and then said: “ They (the grantors) refused to take it; said the deed was to remain in my hands, .... So I kept the deed. I do not know that there was any time mentioned how long the deed was to remain in my hands. I put the deed away. After that, — how long I don’t know — can’t say because I didn’t keep any account, — the deed remained in my hands. But then, Mrs. Sarah Witmyer one day came to my office and demanded that deed. Well, I handed the deed to her, and she took it along, and that is all I know about it.” On cross-examination the witness testified that while $4,000 was the nominal consideration, the real consideration was a collateral agreement by the terms of which the plaintiff agreed “ to keep Daniel Witmyer during- life and provide for him, for clothing and boarding, etc. I could not repeat, not for my life, the rest of it; but that was it, as my memory serves, that was in the agreement.” The witness further testified on cross-examination that no time was mentioned during which he was to keep the deed. “ Q. Pursuant to the instructions you received there, you held that deed and agreement until Mrs. Witmyer came for them? A. Yes, I did. Q. And then you gave them up to her? A. She first fetched the deed; secondly she came again and asked me for the agreement, and I gave it to her. Q. And all that was in pursuance of the understanding you had at the time you wrote it? A. Yes, sir.” Plaintiff’s son, Adam Benedick, testified that Mrs. Witmyer said “ she had deeded the farm, that in case he (plaintiff) should keep Daniel Witmyer as long as he lived — in case she died before he Avould, he should keep Daniel Witmyer as long as he lived, and then the farm was his.” Henry M. Anstine testified that Mrs. Witmyer said to him that “ her brother, the plaintiff, was to have the farm after she was gone,” or Avords to that effect. Ephraim H. Schirey testified that Mrs. Witmyer said “ her brother Philip was to have the farm after she was done with it.” This testimony from plaintiff’s oavu witnesses not only fails to sIioav a delivery of the deed, but it clearly establishes the fact that it Avas not to take effect until the death of Mrs. Witmyer. She not only survived her husband, Daniel Witmyer, [355] but she married again, and, having survived her second husband, died in 1896. The plaintiff lived on the farm with Mrs. Witmyer until a few months after her second marriage and then moved away. Evidence was offered as to declarations of Mrs. Witmyer to the effect that plaintiff was to have the farm, that she had deeded it to him, etc., but it is neither inconsistent with that above quoted, nor does it not call for extended notice. Apart from the other evidence, there is nothing in it that required submission thereof to the jury. Considered as a whole, we are all of the opinion that the evidence relied on by the plaintiff was insufficient to carry the case to the jury. That delivery of a deed is essential to its validity is a proposition too plain to require argument or citation of authorities. In this case, there was no evidence of delivery, and, of course, the jury could not be permitted to infer that delivery to the scrivener was a delivery to the grantee, because the testimony, as we have seen, is expressly to the contrary. There being no evidence of delivery to the plaintiff, or to any one for him, the question of delivery should not have been submitted to the jury: Galbraith v. Zimmerman, 100 Pa. 374; Duraind’s Appeal, 116 Pa. 93. It is unnecessary to consider the effect of the evidence as to the declarations of Mrs. Witmyer the grantor. The witnesses all agree that, as expressed by herself, her intention was that the plaintiff should not have the property until her death. It is not necessary to consider whether the effect of this would be to make the instrument testamentary. It is enough to know that the deed in question was never delivered, conditionally or unconditionally, and that the plaintiff was without evidence on which he could recover in an action of ejectment. It follows that the learned trial court erred in submitting the case to the jury. Binding instructions to find for the defendants should have been given. The judgment is accordingly reversed.