Cribbs v. Walker

McCulloch, J. A decision of this case involves an inquiry (1) as to the character and effect of the instrument in question executed by Cullen G. Cribbs, whether it be a deed conveying the property in trust, as it purports on its face to do, or a testamentary paper intended to take effect at the death of the testator; (2) if it be found to be a deed, and not a testamentary paper, whether the same was delivered by the grantor so as to become effective; and (3) whether the court below had jurisdiction of the subject-matter of the suit, so as to grant the relief sought by the prayer of the complaint. 1. Is the instrument in question a deed, or a testament? This court in the case of Bunch v. Nicks, 50 Ark. 367, said: “To determine the character of an instrument, as to its being a will or a deed, it is necessary to ascertain the intention of the maker from the whole instrument, read in the light of surrounding circumstances. If the intention at the time of the execution of the instrument was to convey a present estate, though the possession be postponed until after his death, it is a deed; but if the intention was that i't should not convey any vested right or interest, but should be revocable during his life, it is a will.” Citing Jordan v. Jordan, 65 Ala. 301; Williamson v. Tolbert, 66 Ga. 127. In that case (Bunch v. Nicks) the grantor conveyed his property, real and personal, to certain of his children by instruments purporting to be deeds, containing the following words; viz: “And the same shall not be sold or alienated until the youngest child shall arrive at the age of twenty-one years, and the deed shall go into full force and effect at my death.” The court held that such instrument was not a will, but a valid deed, conveying a present title to the grantee with the right to possession and use postponed until the -grantor’s death. The court, speaking through Mr. Justice Battle, said: “It is obvious that the intention of the donor was to give his property to the children mentioned in the deeds, reserving the right to use and hold the same, and to enjoy the profits thereof during his life. The evidence of this intention afforded by the instruments themselves, are: 1. The form is that of a deed, the words 'grant, bargain, sell and convey’ used being appropriate to the office of the deed, and inappropriate to a will. 2. They contain a covenant of warranty, whereby the donor agrees to forever warrant and defend the title to the land to the donees and their heirs and assigns against all lawful claims whatsoever. 3. The donor himself calls them deeds of conveyance; and it is unreasonable to suppose he would call what he intended as a will deeds of conveyance. 4. They were executed, delivered and acknowledged as deeds. The only words used in them that can be said to be evidence of an intention to make a will are, 'and the deed shall go into full force and effect at my death.’ But we are to construe these words in connection with the whole deed. Every part must have its effect, if the same can be done consistently with the rules of law. Construed in this way, it was evidently the intention of Nicks to give the land and sell the personal property he had at the time they were executed to the grantees, and to reserve the use and enjoyment thereof for and during his life.” The only marked difference between the instrument under consideration and the Nicks deed, so far as it may distinguish it as a deed from a will, are the clauses reserving to the grantor the right to direct the disposal of the property and the right of revocation in the event of the predecease of the trustee. Do these necessarily stamp the instrument as a will ? In Nichols v. Emery, 109 Cal. 323, it was held that where the owner of real property conveyed it to one of his sons, as trustee, upon trust to sell the land within two months after the death of the grantor, and to divide the proceeds among children of the grantor, including the trustee, and reserved in the conveyance a power of revoking the trust, but continued in possession of the land during the remainder of his life, without revoking it, such conveyance immediately passed a vested interest to the trustee, who took the whole estate necessary for the purposes of the trust, there remaining in the grantor the equivalent of an estate for his own life, and entitling him to remain in possession of the land or to lease it and retain the profits; and that the power of reservation contained in the instrument did not operate to destroy or change its character, or to make it a will or testamentary disposition of his property. The court said: “And the fact that he reserved the right to revoke did not impair the trust, nor affect its character, since title and interest vested, subject to divestiture only by revocation; and if no revocation was made, they became absolute. A man may desire to make disposition of his property in his lifetime to avoid administration of his estate after death. Indeed, in view of 'the fact, both patent and painful, that the fiercest and most expensive litigation, engendering the bitterest feelings, springs up over wills, such a desire .is not unnatural. And when it is given legal expression, as by gifts absolute during life, or by gifts in trust during life, or voluntary settlements, there is manifest, not only an absence of testamentary intent, but an absolute hostility to such intent.” See also Stone v. Hackett, 12 Gray, 232; Hall v. Burkham, 59 Ala. 349; Ricketts v. Louisville, etc., Railway Co. (Ky.), 11 L. R. A. 422; Wall v. Wall, 30 Miss. 93; Abbott v. Holway, 72 Me. 298. The case of Hall v. Burkham, above cited, is especially instructive, the instrument involved being almost identical with the one under consideration here in every essential feature, and it was held to be a deed, and not a will. The court there said: “The argument that it is a will is founded chiefly upon the provisions by which Mrs. Hall reserved the possession and use of the property during her life, and a power to revoke the instrument. According to numerous decisions of this and other courts, the former of these provisions does not by itself produce the effect contended for. And in regard to the power of revocation,'the better opinion is that it tends rather to rebut than to sustain the idea that the instrument containing it is of a testamentary character.” Says Mr. Jarman: “But, as already observed, an instrument is not testamentary merely because actual enjoyment undfer it is postponed until after the donor’s death. If it has present effect in fixing the terms of that future enjoyment, and therefore does not require the death of the alleged testator for its consummation, it is not a will.” 1 Jarm. on Wills, p. *25. “A deed may be executed and retained in the possession of the grantor or some other person, as an escrow, to be delivered to the grantee upon the death of the grantor. Thus, an instrument having the form of a deed, signed, sealed and acknowledged by a grantor on his deathbed, and handed to the attending physician to be kept by him until the death of the grantor, when it is to be recorded, is a deed, and not a will.” 1 Underhill on Wills, p. 54; Stout v. Rayl, 146 Ind. 379. In Kelly v. Parker, 181 Ill. 49, an instrument was construed almost identical with the one here, and it was held to be a deed, and not a will. It contained a reservation- expressly permitting the grantor to “use, occupy, manage, control, improve and lease, for any term or terms of years, said real estate, or any part thereof, in any manner and for any purpose he may desire,” also reserving to him “full power and authority, during his natural life, to let, demise, mortgage, sell and convey said real estate or any part or portion thereof, upon such rents, consideration, terms, trusts, conditions and estates, in fee or any less estate, or for years, and to such effect as he shall desire, and upon trust to permit him so to do,” and also reserving “full power and authority, at his option, by an instrument in writing, executed under his hand and seal, to revoke this conveyance and all the powers and trusts hereby created.” The court said: “It is said the grantor did not intend that the deed should take effect until after his death. The deed contains no such provision. The words of the grant are in pre-sentí, and where such is the case, upon a delivery of the deed the title to the premises will pass to the grantee. 'Had this deed declared that the title to the premises should not pass until the death of the grantor, a different question might be presented. But such is not the language or import of the deed in question; but, on the other hand, it purports to convey the premises absolutely to the grantees at the time the deed was executed, subject to certain reservations, conditions and trusts incorporated.” Citing Shackelton v. Sebree, 86 Ill. 616; Harshbarger v. Carroll, 153 Ill. 636. In our opinion the form and lauguage of the instrument clearly indicate the intention of the grantor to convey the legal title in presentí. . It contains apt words of conveyance usually employed in a deed of conveyance, and the reservation to the grantor of the use during his life and the right to direct a conveyance to be made by the trustee to other parties and to recall or revoke the trust, all, instead of showing an intention to make the instrumeñt a testamentary paper to take effect only at his death, imply an immediate passage of the title. If Cribbs intended the paper to be a will, and retained it in his possession as such, why the necessity of incorporating those reservations in the instrument? If it was not to take effect until his death, the reservation of the life estate and right to direct a sale and to revoke the trust was useless,- as under a will he possessed those rights and powers, and more, without such express reservation. We conclude, therefore, that the instrument was a deed which, if delivered so as to become effective, conveyed the legal title in trust for the purposes therein set forth. 2. The next question presented is whether or not the deed was delivered so as to become effective. The question of delivery of a deed is one of intention of the grantor, as manifested by his acts or words, or both. 9 Am. & Eng. Enc. Law, p. 154, and cases cited. It is shown that the grantor employed to prepare the deed Judge Sam. W. Williams, now deceased, a profound lawyer of wide experience, and especially learned in- the law governing titles to real estate, and conveyances thereof; that he acted upon the advice of his attorney, not only as to the form of the conveyance, but also as to the details of a delivery. Mrs. Cribbs testifies that he delivered the deed to her, and said: “Kate, here is this deed of trust: now, read it over; to my judgment I think that is the proper thing.” That she read it over, and it was agreed that Mr. Cribbs should take the deed, and put it away in his safe, where it should remain until his death. It is true that her testimony is somewhat equivocal and confusing as to what they (she and her husband) thought about the effect of the deed, and as to his statements of his intention concerning the immediate effect of the conveyance, whether it took effect only at his death or vested the title immediately with a postponement of the enjoyment until his death; but a perusal of the whole of her testimony shows that she intended to express the meaning that the delivery was complete. It is evident, we think, that, acting under the advice of his attorney, Mr. Cribbs, did everything he could by delivering at that time to effectuate the conveyance. In other words, that he handed the deed to his wife, the grantee therein, with intent to accomplish a legal delivery, and to put into full operation the trust created by the terms of the deed. Mr. Bradshaw testifies that Cribbs told him that he had delivered the deed to his wife as Judge Williams had advised him. This testimony, as a self-disserving statement, was competent against him or those who claim under him adversely to the deed. There is no testimony disputing the delivery of the. deed, unless we find something in the conduct of the parties which rebuts the idea of any intention to deliver. Stress is laid upon the fact that the deed was found among the effects of the grantor after his death, which, it is said, raises a presumption against delivery. This presumption does not arise where the grantor reserves an interest in the property conveyed, and therefore has an interest in the preservation of the deed. Blakemore v. Byrnside, 7 Ark. 505; Scrugham v. Wood, 15 Wend. 547; Turner v. Warren, 160 Pa.St. 342; Cummings, v. Glass, 29 Atl. Rep. 848; Allen v. Hughes, 106 Ga. 785; Wall v. Wall, 30 Miss. 97. But such presumption, even when it applies, is not absolute and conclusive, but only prima facie, and subject to be rebutted by positive proof of a delivery. 4 Kent, Com. 455; Chambers v. Henry, 93 Ill. App. 648; Hart v. Rust, 46 Texas, 571; Wall v. Wall, supra; Brooks v. Isbell, 22 Ark. 488. There is nothing else, we think, in the conduct of the grantor to negative any intention to immediately pass the title, or to rebut the proof of delivery. His retention of possession and control of the property conveyed was consistent with his reserved rights under the 1 deed, and his failure to record the deed and causing his wife to join him in the execution of deeds in ordinary form, instead of having her convey as trustee, was pursuant to his purpose to keep the conveyance secret until after his death. He had a right to do this, and nothing is found in the law to prevent him from accomplishing, by the execution of a deed immediately conveying the legal title in trust, the same result which could be secured by a will, if he adopted the proper form and legal method. We think he did this by the execution and delivery of the deed in controversy. 3. It is further contended that the conveyance is void because contrary to the rule against perpetuities. The words “children and their descendants/ ’employed in the deed, refer to those surviving at the time of the death of the children of the grantor, and bring the case within the rule that the power of alienation may be postponed for the period of a life or lives then in being. 4. The jurisdiction of the chancery court is challenged upon the ground that the complaint shows that the plaintiffs were not in possession of the lands, and that the suit should have been transferred to the law court. The primary object of the suit is to cancel the deed executed but not delivered by C. G. Cribbs, which, it is alleged, the defendant, Katie G. Cribbs, fraudulently took from the safe of the deceased and filed for record. The recoverv of possession and partition of the lands are incident to the main relief sought. Jurisdiction of the chancery court is asserted to cancel the deed, upon the ground that one of the defendants, by her fraudulent act, procured and placed of record a deed purporting to have been executed and delivered by plaintiffs’ ancestor, which, on its face, barred their right of recovery. It may be conceded that in a suit at law for possession proof could have been introduced to show that the deed had never been delivered, but does that prevent an exercise of jurisdiction by a court of equity on account of the fraud? Where one has procured a conveyance by fraud or duress or other unfair means, that can be shown, at law to avoid the conveyance; nevertheless, a court of equity will interpose to relieve from the fraud. This court, speaking through Mr. Justice Wood, in Maloney v. Terry, 70 Ark. 189, of the jurisdiction of a court of equity to grant relief where a trust relation is set up, and where it is shown that money has been obtained through fraudulent representations, said: “Having jurisdiction of the subject-matter, it does not have to give it up because a court of law could also give complete relief.” Citing Bently v. Dillard, 6 Ark. 79, and Hempstead v. Watkins, 6 Ark. 317, as to concurrent jurisdiction of courts of law and of equity. Ordinarily, a court of chancery will not assume jurisdiction to remove a cloud upon title, or to make partition where the lands' are held adversely by the defendants, and the plaintiff has the legal title, because in that case the plaintiff has a complete and adequate remedy at law, and equity will not interpose merely to try the title. But where primarily the relief sought is such as is peculiarly within the established powers of courts of equity to grant, such as fraud or misconduct of one standing in a relation of trust, then the jurisdiction will be assumed and exercised, even though further relief of a purely legal nature is asked as an incident. Apperson v. Ford, 23 Ark. 746; McGaughey v. Brown, 46 Ark. 25; 3 Pom. Eq. Jur. § 1399; Kennedy v. Northup, 15 Ill. 149; Redmond v. Packenham, 66 Ill. 434; Booth v. Wiley, 102 Ill. 84; Pier v. Fond du Lac, 38 Wis. 470; King v. Carpenter, 37 Mich. 363. In Apperson v. Ford, supra, this court said: “Relief against a deed alleged to be fraudulent has been held to be a proper case for equitable' jurisdiction, though fraud is examinable at law as well as in equity.” In McGaughey v. Brown, supra, Chief Justice Cockrill, said: “There is no mistaking the object of the bill. It seeks to establish title to the lands in the appellees; and, that being accomplished, to reap the advantages that follow ownership, i. e. possession. * * * It was competent for equity to grant the full measure of this relief. It frowns upon a multiplicity of suits, and where the appellees had successfully invoked its aid to invest them with the legal -title, it would not then remit them to an action at law to recover possession; but, having taken jurisdiction of the case for its own exclusive purposes, it would retain the cause to administer the legal after the equitable relief.” This does not conflict with the doctrine stated in Ashley v. Little Rock, 56 Ark. 391, where it was held that persons in possession of lands could not be joined as defendants in a suit in equity by the plaintiff against another defendant for specific performance, where such parties in possession held adversely, and not in privity with the plaintiff or other defendant. The jurisdiction of the chancery court in this case must be sustained for another reason. The appellees have sought the jurisdiction of that court for relief, and can not complain if it is exercised against them, the court having the jurisdiction of the subject-matter and of the parties. It is not a case where there is such a lack of jurisdiction of either the parties or subject-matter as the parties can not waive. Where a suit is improperly brought in equity, it should not, on that account, be dismissed, but should be transferred to the law court; and if no motion is made to transfer the cause, the objection is waivedr Apperson v. Ford, 23 Ark. 746; Talbot v. Wilkins, 31 Ark. 411; Moss v. Adams, 32 Ark. 562; Organ v. M. & L. R. Ry. Co., 51 Ark. 235; Harris v. Townsend, 52 Ark. 411; Love v. Bryson, 57 Ark. 589; Works, Jurisdiction, p. 115. Now, if defendants are held to have waived the jurisdiction of the chancery court in such instance by submitting to a trial of the issues there without objection, and without asking for a transfer, a plaintiff who voluntarily seeks such jurisdiction must be held bound by its exercise. The decree is therefore reversed, with directions to enter a decree dismissing the complaint for want of equity. Opinion delivered February 4, 1905.