Seeley v. Curts

ANDERSON, J. “A grantor may deliver a deed to a third person, to hold until the grantor’s death, and then to deliver it to the grantee. Such a delivery is perfectly valid; but the deed must be left with the depositary without a reservation by the grantor, express or implied, of the right to retake it or otherwise control its use.” — 9 Am. & Eng. Ency. Law, 157, and numerous authorities there cited. Our own court, in the case of Fitzpatrick v. Brigman, 130 Ala. 450, 30 South. 500, speaking through Justice Txson, said: “For so long as he reserves to himself the locus pcenitentise, there is no delivery — no present intention to divest himself of the title to the property. We take it that the grantor need not expressly reserve to himself this right to repent ; but if his act, upon which a delivery is predicated, does not place the deed beyond his control as matter of law, then his right of revocation is not gone.”—Frisbie v. McCarty, 1 Stew. & P. 56; Foster v. Mansfield, 3 Metc. (Mass.) 412, 37 Am. Dec. 154; Griswold v. Griswold, 148 Ala. 241, 42 South. 554, 121 Am. St. Rep. 64; Gulf Cedar Co. v. Crenshaw, 169 Ala. 606, 53 South. 812. There was evidence from which the jury could infer that Campbell made the delivery to Seeley with the present intention of divesting himself of the title to the property, to take effect after his death, and that he placed the deed beyond his control. See admissions of Seeley to Jas. B. O’Dowell. It is true that Seeley testified that it was understood between him and Campbell that the papers were to be returned to the grantor Campbell if he got well, but the jury could infer from [450] other statements made by him, the said Seeley, that such was not the case, and that Dr. Campbell did not expect to get well, and gave him the papers unconditionally for delivery, as per directions therein contained, immediately after his death, and did not provide for a return of sainé in the event he got well. There is more proof in this case, from which the jury could infer an unconditional delivery, or that the grantor did not intend to retain the control of the papers, than there was in the case of Culver v. Carroll, 175 Ala. 469, 57 South. 767. Of course, if Dr. Campbell delivered the papers to Seeley only for safe-keeping, and to be delivered to the grantees after his death, and with the understanding that Seeley was to restore them to him in case he got well, then the delivery was conditional, and the grantor did not lose his right of revocation. The facts in the case at bar differentiate it from the case of Arrington v. Arrington, 122 Ala. 510, 26 South. 152. There the grantor delivered the deed to the mother of the grantees as trustee for them to be delivered to them after his death, but stated that, if the mother survived him, he would look after them for the children, meaning that he would undertake to do what the mother was to do, and not that he reserved the right to recall the deeds for his own benefit, or that he reserved the control over same or made the delivery to the mother subject to his option to repent and reclaim the deed. In the instant case the delivery to Seeley was either to have him carry out the written instruction to deliver the papers after his death and with no intention that they would be restored to him, or that Seeley was to keep and deliver, in case he did not survive the existing illness, but was to return them to him, not as a trustee for the grantees, in case he got well. If the jury believed the first [451] theory, there was such a delivery as to effectuate a valid execution, and, if they believed the second theory, there was not such a delivery' as would constitute a legal execution of the deed.—Culver v. Carroll, supra; Fitzpatrick v. Brigman, 133 Ala. 243, 31 South. 940; Cook v. Brown, 34 N. H. 460; Devlin on Deeds (3d Ed.) p. 435. The defendant’s refused charges 4, 5, 6, and 7 were fair presentations of his theory of the case. It may be that charge 4 could have been refused for using the word “believe,” instead of “reasonably satisfied,” but the other three should have been given. We also think that the record shows that these charges Avere asked in the usual and orderly Avay, and before the jury had retired. It is also suggested that there is not such an insistence in appellant’s brief as to charge 6 and 7 as Avill warrant this court in considering same. They involve practically the same legal principle as charges 4 and 5, which are argued at length under the assignments addressed to said charges 4 and 5, and Avhich said argument relates to charges 6 and 7 also. The judgment of the law and equity court is reversed and the cause is remanded. Reversed and remanded. All the Justices concur, except Doavdele, C. J., not sitting.