Magoffin v. Watros ex rel. Brouillard

Bronson J. (after stating the facts as above). The question of the delivery of the deeds is a question of intention. Devlin, Deeds, 3d ed. §§ 262, 308; O’Brien v. O’Brien, 19 N. D. 713, 715; 125 N. W. 307; Hudson v. Hudson, 287 Ill. 286, 122 N. E. 500. This is a question mainly of fact. Devlin, Deeds, §§ 262, 308; O’Brien v. O’Brien, 19 N. D. 713, 125 N. W. 307. The legal principles applicable are not seriously in dispute. It has been held by this court that a deed delivered to a third person to be delivered after the grantor’s death, operates as a valid delivery and present transfer of title, if made with the intent that all control and dominion thereover terminates at the time of such delivery. O’Brien v. O’Brien, 19 N. D. 713, 716, 125 N. W. 307; Arnegaard v. Arnegaard, 7 N. D. 475, 495, 41 L.R.A. 258, 75 N. W. 797. See 18 C. J. 208. Section 5500, Comp. Laws 1913 (so far as applicable) provides that, though a grant is not actually delivered into the possession of the grantee, it is yet to be deemed constructively delivered when it is do [410] livered to a stranger for the benefit of a grantee, and his assent is shown nr may be presumed. The facts in this record are indeed meager. The record fails to disclose the relationship of the depositaries. Strobeck and Dille, either to the deceased or to the daughter. Whether such persons were agents of the deceased, agents of the daughter, or strangers, must be left entirely to inferences and presumption. There is no proof nor contention that the depositaries were the agents of the daughter, and no contention accordingly is made that actual delivery was in fact made to the daughter or her agents. If the depositaries were agents of the deceased, there was no constructive delivery by reason of the absence of proof of any agreement of the parties therefor, pursuant to subdivision 1, § 5500, Comp. Laws 1913. Accordingly, if there exists any delivery in law, it must exist by reason of a constructive delivery made to the depositaries as strangers, or third parties, pursuant to § 5500, Comp. Laws 1913, above quoted. It is the contention of the respondent daughter, concerning the 1914 deeds, that there is disclosed an intent to make delivery based upon the authority of Arnegaard v. Arnegaard, 7 N. D. 475, 41 L.R.A. 258, 75 N. W. 797; Bury v. Young, 98 Cal. 446, 35 Am. St. Rep. 186, 33 Pac. 338; and Cooper v. Cooper, 162 Mich. 304, 127 N. W. 266. In Arnegaard v. Arnegaard, supra, the motive and intention of the grantor were more clearly shown. In that case the scrivener, the cashier of the bank, testified that the grantor stated that he desired his boys to have the property and he wished to deed it to them; that the grantor said he did not know anything about wills but that he did know something about deeds and mortgages and he preferred to have it deeded; that he delivered the deeds over to the cashier, requesting him to take them and hold them, and in case of the grantor's death to put them on record; and he requested the cashier to say nothing to anybody, about his having deeded this property. Furthermore in this case the trial court made a finding (not in trying the case anew under the Newman Act), held finding in favor of actual delivery and this court, upon reviewing such that it would not disturb the same unless it appeared to be clearly erroneous. Accordingly the finding of actual delivery was upheld. Likewise in Bury v. Young, supra, the deed was executed from father to daughter and was given to one Hazen, an attorney, with instructions [411] not to record it but to deliver it to tbe grantees upon his death. Tbe trial court made a finding that tbe grantor delivered such deed to Hazen for tbe grantees and instructed him to bold tbe same for such grantees without recording until tbe grantor’s death, and thereupon to deliver tbe same to tbe grantee; that such grantor parted with all dominion over tbe deed and reserved no right to recall it or alter its provisions or to have or enjoy any other interest in tbe premises than to bold tbe use of it until bis death. Tbe appellate court held that these facts as stated, and found, in tbe findings constituted a valid delivery of tbe deed. In Cooper v. Cooper, supra, tbe grantor executed deeds to bis sons and placed them in a sealed envelope, indorsed with tbe names of tbe grantees. On bis way home from tbe scrivener be left this envelope with a friend and said: “Keep these papers until tbe boys call for them.” Subsequently, be committed suicide. Tbe sheriff found and delivered a letter addressed to this friend which said: “I wish you would take these papers and have them recorded immediately; by so doing you will greatly oblige.” Tbe friend, as requested caused tbe deeds to be recorded. It was held that these circumstances sufficiently showed an intent to convey a present irrevocable interest to tbe grantees. These cases relied upon by tbe respondent can be distinguished from tbe record facts in this case, as may be noted from tbe statement of facts made concerning tbe same. In O’Brien v. O’Brien, supra, one Burke drew a deed for tbe mother naming her son as grantee therein. He received instructions from tbe mother to bold the deed until her death and then deliver it to tbe son. He testified that be made a memorandum at tbe time and this memorandum statedThis deed was left with W. J. Burke to be held by him until tbe death of Johanna O’Brien, grantor, at which time it is to be delivered to J. T. O’Brien, tbe grantee.” Thereafter Jeremiah O’Brien came to Burke stating that bis mother was sick and about to die and that she bad requested him to get tbe deed. Tbe deed was so given. This court held: “The record does not satisfactorily show tbe circumstances attending tbe execution and delivery of tbe deed to Burke. Tbe language used by tbe grantor is not given. Tbe evidence as to what occurred is more by way of tbe conclusions of Burke. Tbe evidence is entirely wanting as to her intent in respect to tbe right to recall the deed, and as tó whether [412] Burke’s authority to deliver the deed was absolute aud without conditions, except as these matters may be inferred from the very general statements that the deed was to be delivered to the plaintiff upon the grantor’s death. Burke’s testimony may be entirely true, and still the grantor have reserved the right to recall the deed under some circumstances. It is incumbent upon the plaintiff to show that the deed was delivered without any reservations, , The burden is upon him to show title to the land by virtue of the deed, and this he could not do without showing an absolute and unconditional delivery thereof.” Similarly, in this case, it was incumbent upon the respondent daughter, asserting title, to show that the deeds were constructively delivered, with an intent to part with the dominion and control over the same. It was further necessary to accomplish such constructive delivery to show that the deeds were deposited with a stranger, or, such facts and circumstances from which it might be inferred that the depositary was a stranger. Clearly, the deeds deposited with Dille, in 1918, without instructions, were not constructively delivered to the grantee. We are unable to find and hold upon this record that the deeds left in 1911 with Strobeck, with the grantor’s statement that she wanted the deeds recorded if anything should happen to her, operated to constructively deliver such deeds to the grantee as a deposit with a stranger and with the intent to part with all control and dominion thereover. Upon the oral argument, the question of the right of the administrator to maintain this action was raised through a member of this court. We are entirely satisfied that .an administrator may maintain an action to determine adverse claims under the law and procedure of this state. An administrator in this state is entitled to the possession of all the property of the deceased excepting the homestead and other exempt property. Comp. Laws 1913, § 8707. He may sell and convey the real estate, under certain circumstances. Comp. Laws 1913, §§ 8767-8779. The heirs in this state, during the course of administration, do not have the sole control, nor the right of possession of the real estate of the deceased. Honsinger v. Stewart, 84 N. D. 513, 518, 159 N. W. 12. Furthermore, the administrator is expressly authorized by statute to maintain an action to recover any property, real or personal, or for the possession thereof. Comp. Laws 1913, § 8798. The fact that § 8797, Comp. Laws 1913, permits the heirs themselves, or jointly with the [413] administrator, to maintain an action to quiet title, does not deny the right alone to the administrator so to do. Assuredly, where the possession or determination of the title to the real estate of the deceased is necessary for purposes of administration, the administrator, as representative of the estate, possesses an interest sufficient to entitle him to maintain an action to determine adverse claims. See Comp. Laws 1913, § 8144; Blakemore v. Roberts, 12 N. D. 394, 96 N. W. 1029; Druey v. Baldwin, 41 N. D. 473, 172 N. W. 665, 182 N. W. 700; Honsinger v. Stewart, supra; Berry v. Howard, 26 S. D. 29, 127 N. W. 526. See note in Ann. Cas. 1913A, 996. The judgment of the trial court should provide for the quieting of title in the lands involved in the heirs at law of the deceased, and in the administrator for purposes of administration. Druey v. Baldwin, 41 N. D. 473, 172 N. W. 665, 182 N. W. 700. It is ordered that judgment be entered declaring the deeds involved void and quieting title in the lands concerned in the heirs at law of the deceased, and in the administrator of the estate for purposes of administration. Neither party shall recover any costs on this appeal. Christianson, Ch. J. and Birdzell and Grace, JJ. concur.