McPherson v. Featherstone

Cole, J. In their brief, the counsel for the defendants do — 639 — not seriously attempt to sustain the nonsuit on the ground that there was no proof given on the trial which tended to show that Joseph Webb signed the deed in question. One ground on which the motion for a nonsuit was founded, stated that there was no proof of the execution of the deed by Webb; but this objection, we presume, was based upon the alleged insufficiency of the certificate of the clerk of the court of common pleas of Jefferson county, New York, who certifies to the official character of the justice before whom the acknowledgment was taken, and to the genuineness of the signature of the justice, but fails to further state that the acknowledgment was in conformity with the laws of the state of New York. This particular objection, however, seems to be practically abandoned in this court, and is doubtless untenable. For we suppose, if the certificate of the clerk were defective in the particular stated, still, if the conveyance were otherwise sufficient, the title would pass as between the parties, under the doctrine of Myrick v. McMillan, 13 Wis., 188; Quinney v. Denney, 18 id., 485; and McMahon v. McGraw, 26 id., 614. Those decisions were made upon the territorial statutes of 1839 ; and, according to the view there taken of the effect of those statutes, the deed from Webb to the plaintiff would operate to pass the title, even were there no acknowledgment by the grantor. We do not understand there is any pretense that the deed was not signed by the grantor, as it purports upon its face to have been. But it is said there is no evidence tending to show a delivery of the deed. A delivery was of course essential to-give effect to the instrument and make it operative to the passing of the estate to the grantee. This principle is elementary. Before proceeding to consider the objection that the deed was never delivered, it may be well to remember the admissions in the answer, and to notice the fact that both parties are really asserting title under that conveyance. In the fourth defense or counterclaim set up in the answer, it is alleged, in substance, that, in the year 1844, Alexander McPherson purchased the — 640 — property in controversy of Joseph Webb,- paying the entire consideration with his own money; that the deed was made by Webb to the plaintiff without the latter’s knowledge or assent, and' was delivered to Alexander, who always retained it in his possession, not even placing it upon record; that Alexander entered into the possession of the premises immediately after such purchase, fenced and improved the land by erecting buildings thereon, and actually continued to occupy and possess it as owner until his death in July, 1853. Now, notwithstanding the general denial in the answer, it would seem that these allegations amounted to an admission of a valid delivery of the deed, and that the plaintiff might avail himself of that admission on the record. Perhaps the fact the pleader intended to put in issue or deny was the delivery of the deed to the plaintiffj or to any one for his benefit. But if this is the true construction of the answer, we then come to the evidence. And, passing for the present the question as to who paid the consideration, the inquiry arises, Does the evidence show a valid delivery of the deed to the plaintiff, or to Alexander for his benefit? It appears to us that it does. The leading facts in regard to the execution and delivery of the deed are in brief these: In 1844, Alexander McPherson, then an unmarried man, and brother of the plaintiff, immigrated to the territory of Wisconsin, from Scotland, and purchased this and other lands, taking the title to all except the tract in question in his own name. He negotiated with one Boyce, living near the land, for the purchase, the owner, Webb', residing in Jefferson county, New York. Boyce acted as agent for Webb, and received the purchase money when paid. Alexander requested that the deed should be made to the plaintiff, and it was executed according to this direction or request. The deed was received by Alexander and retained by him until his death, all the while the plaintiff not knowing anything about the transaction. Alexander subsequently married, and died in July, 1853, disclosing, before he died, the state of the title, — 641 — and giving various reasons why the deed was taken in the name of the plaintiff. Alexander left a widow and two children. In September, 1853, the plaintiff was informed by the executor of the will that the land was conveyed to him, or that his name was put in the deed as grantee, and he seems to have immediately accepted the grant and ratified the acceptance of the deed by Alexander for his benefit. Erom this time, various negotiations followed, conducted on one side by the executor or guardian of the infant children of Alexander, to procure from the plaintiff a quit-claim or release, to the widow and heirs, of his interest in the land; but from one cause or another all these negotiations failed, and the legal title apparently remained in the plaintiff at the commencement of this action. In considering the question of delivery, we lay out of view all questions as to who was the equitable owner, or whether there was a resulting trust in favor of Alexander, arising out of the alleged fact that he paid the whole purchase money. This feature of the case will be subsequently noticed. The material inquiry now is, Do the above facts show a valid delivery of the deed? It is very evident that Webb intended to execute a conveyance which would be effectual to convey his estate, and that he parted with all control over the instrument. He undoubtedly intended to make a good delivery of the deed to the grantee, or to some one for his benefit. About this there is no possible room for doubt. He evidently intended the deed should take effect as a conveyance in pree-senii, and pass his estate. Alexander McPherson received the instrument knowing that at least it conveyed the legal title to the grantee. He assumed to act for the grantee in accepting the deed, and the plaintiff assented to and ratified his act as soon as he was informed of it. It seems to us that this amounted to a valid delivery of the conveyance. It is not denied that a deed may be delivered to a stranger for the benefit of the grantee, who may be ignorant at the time that it has been executed. If the grantee, when informed of the fact, — 642 — assents to and accepts the conveyance, the deed takes effect, providing the rights of third parties have not intervened. Cooper v. Jackson, 4 Wis., 537; Turner v. Whidden, 22 Me., 121; Concord Bank v. Bellis, 10 Cush., 276; Lessee of Mitchell v. Ryan, 3 Ohio St., 377; Church v. Gilman, 15 Wend., 656; Welch v. Sackett, 12 Wis., 244. “And a delivery may be made good by a subsequent assent, though originally invalid for want of it, upon the principle, omnis ratihabitio mandato cequi-paratur." 3 Wash. R. Prop., ch. 4, § 2: 27. Here there was an absolute delivery of the deed by the grantor with the intent to pass the estate; and we must presume, in' the absence of all evidence to rebut that presumption, that Alexander received the deed for the use and benefit of his brother, whose name, by his direction, had been placed in the instrument as grantee. And when the grantee, upon being informed of the transaction, ratified the delivery and assented to the grant, the deed took effect for the purposes intended. Indeed many of the cases hold, from the beneficial nature of the transaction, that an acceptance by the grantee wiil be presumed in the absence of proof to the contrary; but here there was an unequivocal assent and acceptance. This certainly amounted to a good delivery, and vested the title in the plaintiff. Nor do we think the nonsuit can be sustained on the ground that it can be said as a matter of law that the premises had been occupied and held adversely to the plaintiff for more than twenty years prior to the commencement of the action. It is-true, it clearly appears that Alexander McPherson entered into the possession of the premises immediately after the execution of the deed which was made through his procurement to the plaintiff; that he improved the land, built upon i t, occupied the house as a homestead, paid taxes, and exercised acts of ownership over the property. But all these acts are entirely consistent with the idea that he was improving and holding the property for his brother. The character of the possession, and especially the intention with which it was commenced — 643 — and continued, are the facts to be regarded. The law upon this subject is thus clearly stated by Tyler, in his work on ejectment and adverse possession, p. 860 : “ The quo animo a possession is taken or held furnishes the true test of its character. . The possession, to be adverse, must be shown to have been hostile in its inception, or that, having been begun in consistency with the rightful title, its character has changed; but there must be adequate cause for the change, or for imputing it. "When it commences under acknowledgment of the right owner’s estate, the possession will retain its original quality through any succession of occupants of the land; and will be presumed to be in subservience to the rightful interest.” (See Angelí oh Limitations, p. 385; 3 Washb. on Real Prop., pp, 123-127.) There is no clear and satisfactory evidence that Alexander entered into possession in hostility to the plaintiff, or that he denied the rights of the latter under the deed up to the time of his death. Certainly the evidence on this point is not sufficiently strong and conclusive to warrant the court in withdrawing from the jury the-question of adverse possession. Whether Alexander repudiated and denied the rights of the plaintiff, and claimed the land as his own, or whether he intended his possession to inure to the benefit of the plaintiff, were questions which should have been submitted to the jury upon all the evidence. It might prejudice the rights of the parties were we to express any more decided opinion as to the effect of the .testimony upon this point. Another ground on which a nonsuit was asked, was, that it appeared that the consideration for the property was paid by Alexander McPherson, and that, though the deed was taken in the name of the plaintiff, still he is a mere naked trustee, having no interest in the land, and can not maintain ejectment to recover the possession. In the fourth subdivision of the answer, there is an equitable counterclaim setting up this resulting trust in favor of the defendants. A resulting trust arises whenever an estate is purchased in the name of one per — 644 — son, and the consideration is paid by or comes from another. Under such circumstances, a trust was presumed from the nature of the transaction and the apparent equity of the case. 2 Story’s Eq. Jur., § 1201. The conveyance in the present case was made in 1844, before the enactment of ch. 57, R. S. 1849; and possibly a resulting trust would arise, providing, it should appear that Alexander paid the consideration with his own money. But this is a question we shall express no definite opinion on now, because we are unable to say what the fact was in regard to the payment of the consideration, whether the money really belonged to Alexander McPherson or not. There is testimony tending to show that the purchase of the .tract in question was made with partnership funds, or for the joint benefit of the plaintiff and Alexander, who had been engaged together in the business of buying and selling cattle •in Scotland before the latter immigrated to this country. This question, however, whether the plaintiff holds the title, as a mere trustee for the defendants, is a matter which will more properly arise on the trial of the equitable issue on the counterclaim. That issue has never been tried, but only the legal issues. In Du Pont v. Davis, 35 Wis., 631, an equitable defense was interposed to an action of ejectment; and this court held that the defendant was entitled to a trial of the equitable case, not as a defense merely, but as a counterclaim. And the chief justice states that the correct practice is to first try the equitable issue on the defendant’s counterclaim, before the court, and afterward, the legal issue by a jury. This would have been the proper com’se to have pursued on the trial of these issues. Should the fact be established on the trial of the counterclaim, that Alexander McPherson purchased the land with his own money, the question whether the plaintiff does or does not hold as trustee for the heirs will arise and have to be determined. On the evidence as it stood when the nonsuit was granted, that important fact was left in doubt. By the Court. — The judgment of nonsuit is reversed, and the — 645 — cause is remanded for a new trial in accordance with this opinion.