Zeitlow v. Zeitlow

The opinion of the court was delivered by Benson, J.: The substantial controversy is over the question of delivery of the deeds made at Excelsior Springs, Mo. The plaintiff claimed under both deeds— [717] the one made in Mr. Spilman’s office as well as the one made in Missouri. The court instructed that if the jury found that either had been delivered the plaintiff should recover but that if neither was delivered he should not recover. The jury found that the deed left at Mr. Spilman’s office was to he held by the custodian until “called for,” without finding whether it was to be so held until called for by the grantor or grantee. The plaintiff relies mainly upon the deed made at Excelsior Springs, and so the vital question is whether the finding that that deed was delivered is supported by the evidence. The court correctly stated to the jury what constitutes a delivery substantially as declared by this court. (Wuester v. Folin, 60 Kan. 334; Kelsa v. Graves, 64 Kan. 777; Doty v. Barker, 78 Kan. 636.) The general verdict for the plaintiff embraces a finding that the deed was so delivered since that was a material fact in issue. (Harmon v. Bowers, 78 Kan. 135.) If it was the intention that the deeds when finally executed and placed in the envelope were to take effect as present conveyances, then the jury were justified in finding that they were delivered. Words, or acts, or both, showing an intention on the part of the grantors that a deed shall be considered as completely executed and that the title shall at that time be conveyed from the grantor and immediately vested in the grantee are sufficient to show delivery. (Tucker v. Allen, 16 Kan. 312; Harmon v. Bowers, supra; Doty v. Barker, supra; Young v. McWilliams, 75 Kan. 243; Ruckman v. Ruckman, 32 N. J. Eq. 259.) The reservation of rents, or use of the land’, and the promise exacted from the children that they would not have the deeds recorded, thereby seeking to guard against trouble with purchasers concerning the rents, should the property be conveyed away, is an indication of an intention to pass the title. The agreement that the deeds should be deposited with Mr. Spilman until the death of the grantors indicated a purpose to further [718] safeguard the interest so reserved. At least it was a question for the jury whether that was the purpose of such deposit, or whether it was the intention to make the delivery to the custodian a condition upon which the title should pass. The evidence tends to show that the grantors did not retain any control over the deeds. The grantors directed the justice of the peace, in the presence of all the parties, to transmit the deeds to Mr. Spilman, and the justice in turn passed this direction on to the notary. Had this direction been followed the delivery to Mr. Spilman would have been sufficient, and possession being given, the title would have vested at once subject only to the reservation of rents. (Bury v. Young, 98 Cal. 446; Nolan v. Otney, 75 Kan. 311.) Other authorities are cited in notes appended to the report of the case last cited in 9 L. R. A., n. s., 317, and in 54 L. R. A. 865. No good reason is suggested why the same result would not follow notwithstanding the failure to transmit the instruments as directed if it was the intention that title should pass immediately, and the subsequent disposition or deposit was provided for merely to safeguard the interests of the parties. It was said in Ruckman v. Ruckman, 32 N. J. Eq. 259: “Delivery may be effected by words without acts, or by acts without words, or by both acts and words. Whenever it appears that the contract or arrangement between the parties has been so far executed or completed that they must have understood that the grantor had devested himself of title, and that the grantee was invested with it, delivery will be' considered complete, though the instrument itself still remains in the hands of the grantor.” (p. 261.) (See, also, Ledgerwood v. Gault, 70 Tenn. 643; Standiford v. Standiford, 97 Mo. 231; Douglas et al. v. West, 140 Ill. 455.) It was for the jury to determine whether it was the intention that the title should pass when the actual deposit of the deeds should be made with Mr. Spilman, or whether it was intended that it should pass pres [719] ently notwithstanding the further agreement for transmission and deposit. This was a question of fact, and the finding of the jury upon the evidence, which is found sufficient to sustain it, can not be disturbed. The opinion in Worth v. Butler, 83 Kan. 513, is cited as being opposed to these views, but in that case the delivéry depended upon undisputed facts, showing that no delivery had been made and leaving no room for any legitimate inference to the contrary — a situation entirely different from the one now under consideration. The defendants requested several instructions relative to the Excelsior Springs deeds. So far as these requests embodied correct principles they were sufficiently embraced in the general charge of the court, which clearly stated the rules of law necessary for the information of the jury. Most of the instructions requested, however, declared in effect that the deeds were inoperative for want of delivery. But delivery, as already stated, was a question of fact for the jury. Objection was made to the oral testimony relative to the proposed plan for division of the land, afterward consummated by the deeds. This evidence was properly received to show the intention of the parties and as part of the history of the transaction. Even if erroneously received, no prejudice resulted. Without separately discussing each of the assignments of error it is held that the petition stated a good cause of action; that the evidence was sufficient to sustain the verdict and special findings; and that no prejudicial error is shown. The judgment is affirmed.