Kittoe v. Willey

Dodoub, J-. The finding of the court as to the words used by the deceased, John Willey, at the time the deed was placed in his wife’s hands, must be sustained. It is supported by the testimony of the only living witness to the transaction, and is contradicted only by the fact that the same witness, on another occasion, in purporting to quote those words, omitted part of them. The only other question involved is whether from those words, in the light of the attending circumstances, we can say that the further finding that John Willey then intended to place the deed beyond his control, and therefore deliver it for the grantee, must be set aside as against the great preponderance of the evidence. The rales of law generally governing the delivery of a deed to another than the grantee are quite well settled by our own decisions. Prutsman v. Baker, 30 Wis. 644; Campbell v. Thomas, 42 Wis. 437; Albright v. Albright, 70 Wis. 528, 36 N. W. 254; Williams v. Daubner, 103 Wis. 521, 79 N. W. 748; Ward v. Russell, ante, p. 77, 98 N. W. 939. These cases establish that the manual deposit of a deed with a third person, to receive and hold for the grantee, with intent thereby to give such paper effect as a deed and to place the same beyond the custody and control of the grantor, will give such deed validity and efficacy as against the grantor, [553] •although some condition is imposed, precedent to final delivery to the grantee, 'which may serve to prevent vesting of actual title in him meanwhile, certainly if such precedent event is one sure to happen. There must be physical tradition of the deed out of the grantor’s possession, and there must he the intent to place it out of his control for the benefit of the grantee. Obviously the latter element is the one over which difficulty most frequently arises, and not much can he said a prioñ to guide the judgment of trial courts thereon. TIardly more has been accomplished in that direction than to prescribe the rule that any express reservation of a right to withdraw the deed from the depositary refutes the intent essential to its efficacy. Obviously all the circumstances — - closeness of relation to the depositary, naturalness of such selection as mere custodian for the grantor, ease of latter’s physical access to papers as usually kept by the person selected as depositary, certainty or uncertainty of grantor’s belief in his approaching death; all these, besides the spoken words- — may vary the conclusion in different cases. Undoubtedly the wife of a bedridden man is so natural a person to receive into her hands a paper which he desires to retain in his legal custody that the intent to make an effective delivery is less readily to be inferred from the handing of a deed to her than if to a stranger. Morris v. Caudle, 178 Ill. 9, 52 N. E. 1036. Nevertheless, if the necessary intent exists, a deposit with her is as effective as with another. Squires v. Summers, 85 Ind. 252; Stout v. Rayl, 146 Ind. 379, 45 N. E. 515; Sneathen v. Sneathen, 104 Mo. 201, 209, 16 S. W. 497; Miller v. Meers, 155 Ill. 284, 40 N. E. 577. The question of that intent was, as we have said, one of fact, to be answered by inference from all the circumstances surrounding the transaction. While the inference might well be doubtful, we are convinced that the doubt is very evenly balanced between the conclusion reached by the trial court and a contrary one; nay, we are by no means certain that we should not reach the [554] same result. In sucb situation we cannot set aside tbe finding of fact as to John Willey’s intent, wbicb, standing, supports tbe judgment rendered. By the Court. — Judgment affirmed.