Jourdan v. Patterson

Grant, J. Plaintiff and one Joseph Jonrdan were married March 22, 1887. He died December 28, 1891. At-the time of his marriage he was in possession of the real estate in which the plaintiff now seeks to recover dower. Four days before the marriage, he made, signed, and acknowledged a deed so his son, Pearley Jonrdan, which was not recorded until after his death. Defendants were in possession under Pearley Jonrdan. If the execution became complete by delivery before the marriage, plaintiff is not entitled to dower. If the execution failed by nondelivery until after the marriage, she is entitled to recover. The only issue, therefore, before- the jury, was the time of delivery. 1. Plaintiff claims that the deed was delivered a few days before Joseph's death. Evidence was admitted tending to show that he was not at that time competent to deliver the deed, by reason of his illness. Its admission was error. His condition on that day was of no consequence, and would naturally prejudice a jury against the son, the real party in interest; the sole issue being, was the deed delivered before the marriage, at which time no question is raised as to competency ? 2. Previous to the commencement of this action a bill had been filed against Pearley Jonrdan to set aside the deed. To this, Pearley filed an answer, in which it was stated that the deed was made and executed March 18, 1887, and was duly delivered to him December 25, 1891. Pearley testified in this case that the deed was delivered the day it bore date. This statement in the answer was introduced to contradict him. On his redirect examination he testified that he did not know what the word “delivery” meant in law. He was then asked to state [604] what he meant by the use of the word in his answer in the equity case. We think it was proper for him to ■explain, if he could, what he understood by the term. A ■layman might use the word “delivery” when the act to which he referred would not constitute the delivery required to effect a complete execution of a deed. 3. The judge instructed the jury that the burden of proof was upon the defendants to show the delivery of the ■deed. This was not error, under the circumstances of this case. Pearley Jourdan admitted that the deed was kept in a locked box in his father’s house, and that he obtained the key from his father two or three days before his death, unlocked the box, and took it out. Under these circumstances, there was no presumption of delivery arising from •the deed itself or the record thereof. Patrick v. Howard, 47 Mich. 45. There are many other assignments of error, but it is unnecessary to mention them. In some, no objection was made. In others, when the testimony was offered, defendant’s counsel only said, “I object.” This forms no basis for an exception. Hutchinson v. Whitmore, 95 Mich. 592; Young v. Stephens, 9 Id. 507. In those assignments where ■the objection was properly taken there was no error, and ■it would be of no profit to the profession to discuss them here. For the reasons above given, the judgment must be reversed, and a new trial ordered. The other Justices concurred.