Provart v. Harris

Mr. Justice Shope delivered the opinion of the Court: The important question presented upon this record isr whether the several deeds, signed, sealed and acknowledged by Philip C. G. Provart and wife, were in fact delivered, so-as to make them effectual to convey the lands therein described, to appellants. Delivery of the deeds is denied, but' as to the facts and circumstances of and attending the alleged delivery there is practically no controversy. The deeds -were all signed and acknowledged by the grantor at the same time. On the day of his death, at his request, a scrivener was called in, whom he directed to draw the five deeds and his will. The deeds were drawn, signed and acknowledged, and laid upon a table in an adjoining room, where they were found after the grantor’s death. After the making of the deeds was completed, the scrivener entered at once upon writing the will, and having written the commencement, and made memorandum of two items of lands to he devised, the said Provart became too weary to proceed, and requested the scrivener to call the next morning and finish it. The scrivener, being about to take his departure, asked Provart if he should take the deeds along and keep them till morning. The grantor replied, “No, let them stay where they are.” A grandson, who was present at the time, testifies that the reply was, “No, they aré all right; just leave them alone.” Within an hour after the scrivener’s departure the grantor died. The pastor, who was also present, testifies: “I laid them” (the deeds) “on the table, together, where they remained until he died. He said two or three times during the day: ‘I want to make the deeds out to my boys; if I don’t get along I want you to take the deeds and have them recorded; if I get along I will do that myself/ After he died I took the deeds, * * * and next morning gave them to two of the boys, — not the ones the deeds were made to. * * * He did not say what to do with them,— only said to bring them and have them recorded, if he did not get along.” The deeds were subsequently handed to appellants and filed for record. It is apparent from this record that the original design and intention of the father was, at the time, the distribution of his entire estate among those having claim upon his bounty, and that the making of the deeds to his five sons, the appellants, was, in the father’s contemplation, but a part of the general plan for the final disposition of his property. It is a familiar and fundamental rule of law, that in order for a deed to operate as an effectual transfer of title to land, it is indispensable that it be delivered. Delivery is the final act on the part of the grantor by which he consummates the purpose of his conveyance, and without it all other formalities which have preceded are impotent to render it effectual as an instrument of title. The law prescribes no formulary to be pursued in making delivery of the deed, and it may be done “by acts without words, or by words without acts, or by both.” (Bryan v. Wash, 2 Gilm. 565.) Or, as said in Herbert v. Herbert, Beecher’s Breese, 354, quoting from Jackson v. Phipps, 12 Johns. 419, it may be “either actual, by doing something and saying nothing, or else verbal, by saying something and doing nothing, or it may be by both; but by one or both of these it must be made, for otherwise, though it be never so well sealed and written, yet is the deed of no force,” — citing 1 Shepard’s Touchstone, 57, 58; 2 Blackstone’s Com. 307; Viner’s Abr. 27, see. 52. See, also, Walker v. Walker, 42 Ill. 311; Skinner v. Baker, 79 id. 496; Byars v. Spencer, 101 id. 429. "While it may not be essential, in all cases, that the deed should be delivered into the actual possession of the grantee^ (Gunnell v. Cockerill, 79 Ill. 79,) it is indispensable, whatever means may be adopted to accomplish its delivery, that the deed pass beyond the dominion and control of the grantor, for, otherwise, it can not be correctly said to come within the power and control of the grantee. t Their interests are diametrically opposed. Both can not, consistently with its objects, have control of the deed at the same time, and until the grantor parts with all control over it, that of the grantee does not attach. (Cases supra.)' It is absolutely essential that the acts done or words spoken, or both, shall clearly manifest an intention, on his part, that the deed shall presently become operative to convey the estate therein described, to the grantee, and that he has parted with all power of control and dominion over it, (Bryan v. Wash, supra,) for, as we have seen, if the grantor retains dominion and control over it, the deed is ineffectual for any purpose as a conveyance. In Cook v. Brown, 34 N. H. 460, the court, in passing upon this point, there said: “To make the delivery good and effectual, the power of dominion over the deed must be parted with. Until then the instrument passes nothing. It is merely ambulatory, and gives no title. * * * So long as it is in the hands of a depositary, subject to be recalled by the grantor at any time, the grantee has no right to it and can acquire none; and if the grantor dies without parting with his control over the deed, it has not been delivered during his life, and after his decease no one can have the power to deliver it.” In Prutsman v. Baker, 30 Wis. 644, it was said: “To constitute' ■ delivery, good for any purpose, the grantor must divest himself of all power and dominion over the deed. * * * An essential characteristic and indispensable feature of every delivery, whether absolute or conditional, is, that there must be a parting with the possession, and of the power and control over the deed, by the grantor, for the benefit of the grantee-, at the time of delivery.” While the doctrine announced in these cases has not been universally adopted, (1 Devlin on Deeds, see. 283,) it is supported by the great current of authority. See Hawes v. Pike, 105 Mass. 560; Shurtleff v. Francis, 118 id. 154; Garnaus v. Knight, 5 B. & C. 671; Stilwell v. Hubbard, 20 Wend. 44; Brown v. Brown, 66 Me. 316; Jackson v. Dunlap, 1 Johns. Cas. 114; Baldwin v. Maultsby, 5 Ired. 505 ; Younge v. Guilbeau, 3 Wall. 636; Tompkins v. Wheeler, 16 Pet. 106, and supra. In Weber v. Christen, 121 Ill. 91, it was said, that “if, from all the circumstances, * * *' it appears the grantor * * '* intended to give effect and operation to the deed, and to relinquish all power and control over it, we think it clear the law would give the deed effect accordingly,” etc. In support of this view see, also, Wiggins v. Lusk, 12 Ill. 132; Rivard v. Walker, 39 id. 413; Price v. Hudson, 125 id. 284; Kingsbury v. Burnside, 58 id. 310. Applying the foregoing principles to the ease at bar, we think it manifest that there was no delivery of the deeds by the grantor with the intention that they should presently become operative. They were not delivered to the Rev. Harris for delivery to the grantees, but at most they were left where the scrivener had placed them, and Harris instructed by the grantor that in the event he (the grantor) did not get along, to see that the same were recorded; accompanied with the statement that if he did, he would attend to it himself. Undoubtedly his intention was to proceed, on the following morning, with the completion of his will, and effect thereby complete disposition of his estate. Had he been impressed with the conviction that he would probably not live to do so, it might be presumed that he would have made actual delivery of the deeds. But it can not be known that he would ever have delivered them except as part of the general disposition of his property, of which they formed a part. There can be no question that his dominion and control over the deeds, at the time of his death, was such that, had he lived, he could have revoked or destroyed them, and there was therefore no legal delivery of the deeds to appellants. Appellants were permitted to testify in their own behalf, over the objection of appellees. No cross-error is assigned questioning the correctness of this ruling, and it is not, therefore, presented for decision. It is, however, insisted by appellants, that their testimony was competent, but that the court disregarded it in the rendition of its decree. It is unnecessary to determine the competency of the evidence, for the reason that if it be considered, it would not, in our j udgment, change the result. As we have seen, there is no considerable conflict, and when all is considered we can not say that the court erred in its finding. The decree of the circuit court will be affirmed. Decree affirmed.