Meech v. Wilder

Grant, J. (after stating the.facts). 1. We concur in the conclusion of fact reached by the circuit judge that this deed was delivered by Wilder, Sr., to his daughter-in-law, to be by her delivered to her husband upon the death of his father; that upon delivery to her he parted with'all control over it; and that she promptly delivered it at his death to her husband. The evidence we regard as quite conclusive upon this point. The circuit judge discarded the evidence of the defendant’s wife as to conversations between her and the deceased, as within the prohibition of the statute, and did not consider it in reaching his conclusion. Several witnesses testified to statements made by Mr. Wilder, Sr., which can lead to no other conclusion. The judge, in his opinion, said that these witnesses were careful and truthful in their testimony.. 2. The important question of law relates to the construction to be given to the following words: “This deed is to be delivered and recorded to the grantee on the death of both of the grantors.” It is the well-established rule in this State that the delivery of a deed by a grantor to a third party, to be by him delivered to the grantee after the grantor’s death, is valid. It conveys. the fee, and operates as a conveyance in prcesenti, though the enjoyment is postponed until the grantor’s death. Jenkinson v. Brooks, 119 Mich. 108 (77 N. W. 640); Fulton v. Priddy, 123 Mich. 298 (82 N. W. 65, 81 Am. St. Rep. 201). The question of the conveyance of an estate of freehold to commence in futuro is fully and ably discussed, and authorities cited, in Wyman v. Brown, 50 Me. 139, and Wilson v. Carrico, 140 Ind. 533 (40 N. E. 50, 49 Am. St. Rep. 213). Under the above authorities, if no such language had been used in the deed, and it had been [32] delivered by the grantor to Mrs. Wilder with instruction to deliver it at his death to his son, the deed would be valid. Is it any less valid because of the language in the deed ? The delivery spoken of in the deed means evidently the actual delivery to the grantee therein named for recording. It does not refer to a delivery by the grantor to a third party to see that this provision of the grantor is carried out. The delivery to the third person as trustee or holder is entirely consistent with the language of the deed. When, therefore, the grantor deposited the deed with a third person, and placed it beyond his control or recall, the deed was delivered, under the numerous decisions of this court. The authorities cited in behalf of the complainants are not in conflict with the rule as above stated. In Cook v. Brown, 34 N. H. 476, the deed was placed in the hands of a depositary, to be delivered to the grantee upon the death of the grantor, “provided it is not previously recalled, and the grantor reserves the right and power to recall at any time.” In Huey v. Huey, 65 Mo. 689, a father signed and acknowledged a deed to his son, intending it as a gift, and deposited it with his own papers in a chest, to which, however, the son, who lived with him, had access. It was held no delivery, because his father had not parted with his control over the deed. In Jackson v. Leek, 12 Wend. 107, a deed was signed and acknowledged, but not delivered until eight or nine years after the decease of the grantor. It was shown that the grantor said that he had made out a deed, but had told the grantee that it had better not be delivered, as there was a dispute about the land. In Stilwell v. Hubbard, 20 Wend. 44, the grantor retained possession of the deed until his death. The court said: “ There were no formal words of delivery, and nothing was said at the time the deed was executed from which it can be inferred that Hubbard intended it should be a present, operative conveyance.” In Wellborn v. Weaver, 17 Ga. 267 (63 Am. Dec. 235), [33] the deed, which was one of gift, was given to one of the subscribing witnesses to hold as agent of the grantor until his death. It was held that the deed did not pass beyond his control during his lifetime. The decree is affirmed, with costs. Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.