Luscombe v. Peterson

Brooke, J. I am of the opinion that the learned circuit judge reached a proper conclusion in this cause. After Lyman W. Luscombe learned from Wilson, who drew the original papers, that they were no good, he went back to Wilson with the complainant, John B. Luscombe, for the purpose of correcting the error he had been told was made. He testified: “Q. Before you made the change you told your brother John, and you and John went to Wilson together, didn’t you? [167] “A. Yes; he said it was no good. “Q. You fixed it up so it was good ? “A. I supposed so. “Q. Bo your brother would have it after you passed away while he and his wife lived and then Robert should have it ? “A. Yes, sir. “Q. You fixed it up that way ? “A. Yes, sir.” Wilson, the scrivener, testified in part as follows: “A. He wanted to deed it to his brother, John, and at his death and his wife’s death he wanted his son, Robert, John’s son Robert, to have it as long as he lived. Then he wanted Robert’s oldest son to have it. I can’t say as I remember any further conversation before drawing up the papers. Might by jogging my memory; a good many years ago. I believe he stated John lived on the place at that time. If he told me how long John had lived there, I don’t remember. I made out a deed at that time. “Q. I wish you would describe what was in the instrument, as near as you can remember. “A. The deed was filled out as Lyman Luscombe as party of the first part to John B. Luscombe as party of the second. The consideration, if I remember right, was $1. Then the description of the land was given, and then, after the description was given, it further stated that at the time of John’s death and his wife’s he wanted Robert Luscombe to have it, his son, John’s son; and at the time of his death, Robert’s death, he wanted Robert’s oldest son to have it. After I drew the document, I read it to him. It was drawn on a warranty deed headed ‘ Long Form,’ containing the usual covenants. “Q. After the deed was drawn and read to him what • was done ? “A. He told me he wanted to leave it with me. “Q. Did he sign it? “A. Yes, sir; he signed the deed. "Q. Will you state as to whether it was witnessed or not? “A. Yes; signed, witnessed, and acknowledged. I don’t remember who the witnesses were. There were two of them. I was a notary, and took the acknowledgment. Nothing further said or done about it any further than he [168] told me to keep it. He wanted to leave the papers with me. * * * “Q. When he came to your office in 1904, as you remember it, in relation to this property, do you know how he happened to come there at that time ? “A. My attention was called on the street or in the People’s Savings Bank over here by Mr. Larabertson to an article in the Northwestern Review, stating that a deed made in that kind of manner there had to be a transfer made. “Q. Delivery you mean ? “A. Yes, sir; delivery of the deed. I had left my papers there at the bank, and Mr. Lambertson knew they were there, and I brought up that matter about him. I said there was no delivery made there. We talked the matter over. So I called Lyman’s attention to it. “Q. In what way? “A. I have forgot whether — I think I spoke to him. I told him I was informed there had to be a delivery made of the deed, and I think I wrote to John, his brother. I think I wrote to him, and says I, ‘ If that is the case, we had better fix these matters up.’ So he and John came into the store together, to the best of my remembrahee, and I told him that this deed that he drew up formerly looked to me as though it was entailing the property. I told him, if I was in his place, I would change it, and have only one name mentioned in it besides John’s. He told me I might draw up another one. So I drew up another deed of the same property, and with just Robert’s name mentioned besides John’s. “Q. How was that deed worded, as near as you can remember it ? “A. It was worded like the first one, copied from the first one, with the exception of Robert’s oldest son. “Q. That was left out ? “A. Yes, sir. ‘ ‘ Q. Now was that deed read over to Lyman Luscombe ? “A. To the best of my remembrance it was. “Q. When he came there on each occasion, as I understand you, or on the first occasion when he came there, he told you he wanted a deed made of his property ? “A. Yes, sir, “Q. To John ? And he stated he wanted it fixed so it would not have to be probated ? “A. Yes, sir. [169] “Q. Did he say anything about being opposed to the probating of estates ? “A. Well, he grumbled about the expense that was attached to it, and he said as a rule the lawyers got a good share of it. He wanted his fixed so there wouldn’t be any expense. "Q. When he came there the second time, and this last deed was made, the deed you have just referred to was made, did he say anything at that time about fixing it so it wouldn’t have to be probated ? “A. I don’t remember of it now. It was read over to him, signed, witnessed, and acknowledged. I think Alvin Lloyd and Henry Friedley witnessed it. I took the acknowledgment as a notary public at that time. That acknowledgment was certified on the instrument itself in the usual form in vogue in this State. It was a long form warranty deed. “<Q. Was John Luscombe present on that occasion, the second time ? “A. To the best of my remembrance he was sitting down by the stove. I couldn’t say positive. I think he was. The first time he wasn’t there. “Q. The second time he was ? “A. Yes, sir; as I remember it. “Q. After the deed was drawn and fully executed except delivery, what was done with it ? “A. The three of us went over to the People’s Ssfvings Bank and I gave Lyman the deed. He passed it to John, and John handed it to me and I took care of it. “Q. Lyman Luscombe delivered if to John Luscombe ? “A. Yes, sir. ”Q. And John handed it to you ? “A. Yes, sir. '‘Q. What were your instructions in relation to what was finally to be done with that deed ? “A. The instructions were the same as the other, that I was to beep the deed and in case of his death I was to pass it to John. “ Q. That is, hand it to John ? “A. Yes, sir. “Q. Now, at the time of the delivery, or the execution of this deed, or either of them, was there anything said in regard to recording the deeds by Lyman Luscombe ? “A. He stated he didn’t want it recorded. The first [170] deed I inserted the words: ‘ This deed not to be recorded until after my death.’ "Q. Was there anything said about it at the time of the second deed ? “A. He didn’t want that recorded, said the same. “Q. What was the language you inserted ? ''A. ‘This deed is not to be recorded until after the death of Lyman Luscombe.’ Lyman Luscombe came to me again in the winter of 1911. * * * “Q. At the time of making the second deed was there anything said by Lyman in respect to his wanting to retain control of the deed or property during his lifetime ? “A. No, sir.” I think it is quite clear from the foregoing testimony that Lyman W. Luscombe made and intended to make delivery of the deed in question, and that by such delivery a present estate passed to the grantees named in the instrument which could not afterwards be defeated through any change of mind on the part of the grantor. Dyer v. Skadan, 128 Mich. 348 (87 N. W. 277, 92 Am. St. Rep. 461); Wilbur v. Grover, 140 Mich. 187 (103 N. W. 583); Blackford v. Olmstead, 140 Mich. 583 (104 N. W. 47); Wipfler v. Wipfler, 153 Mich. 18 (116 N. W. 544, 16 L. R. A. [N. S.] 941), and cases there cited and reviewed. The judgment should be affirmed. Moore, C. J., and Steer® and McAlvay, JJ., concurred with Brooke, J.