Chambers v. Stewart

R. DE STEIGUER, J. It is well settled in Ohio that “where a grantor in a deed delivers it to a third person as his deed to be delivered to the grantee at the death of' the grantor, and the deed is accordingly delivered to the grantee upon the grantor’s death, the title passes as of the date of the first delivery.” Ball v. Foreman, 37 Ohio St. 132; Crooks v. Crooks, 34 Ohio St. 610. It is also well settled that when the grantor places in the hands of a depositary a deed to be delivered to the grantee upon the death of grantor, reserving the right or power to recall the deed at any time before his death, there is no delivery, and the deed passes no title to the premises therein described. Shirly v. Ayres, 14 Ohio, 307; Cook v. Brown, 34 N. H. 460. The case in hand differs form the first class of cases named, in that there was no delivery of the deed after death, but it was destrojmd by the grantor in his life time, and differs from the second in that the deed was delivered absolutely as the deed of the grantor to a third party as the [289] trustee of the grantee without any power of recall or revocation on the part of the grantor. The claim of the defendant is two-fold; first, it was not the intention of the grantor, Stewart, to make an absolute delivery of the deed when he left it with Sheldon, the notary; second, that Stewart, having taken possession of the deed in his lifetime, and destroyed it, and thereby having prevented the second delivery after his death, the title never vested in the plaintiff; that this second delivery is necessary, and that such is the doctrine of the Ohio cases above cited. The first of these claims raises a question of fact for the court, and the fact of delivery may be found from the language and the acts of the parties preceding, attending and subsequent to depositing the instrument with the depositary. Dukes v. Spangler, Ohio St. 119, vol. 35. This issue of fact the court has found against thee defendants. As to the second contention, the authorities are not uniform, and the question does not seem to have been directly decided by the court of last resort in Ohio. The court has decided what the effect of the deed is when the second delivery has been made, but has not decided what the effect is when the second delivery has not beeen made, as in this case. The destruction of a deed after the title vested would not destroy the title, or reinvest it in the grantor, but the question is, did the title vest on the first delivery? The defendants cite the opinion of Chief Justice Shaw, in the case of Foster v. Mansfield, 5 Metcalf, 412. In that case Mansfield, the grantor, being seized of the land, executed a deed to his son, and delivered it to Dr. Shed, with a request that he would hold it and deliver it to the grantee after the grantor’s death. The grantor died, and the deed was then delivered to the grantee. It was held that the deed vested the title in the grantee. The justice, in disposing of the case, remarks: “It is immateiral to inquire what would have been the effect if the grantor had recovered from liis sickness and taken back the deed, as the deed did not effectually pass till the second delivery. If that second delivery had been prevented, it would probably have been held that it was wholly inoperative. ” This question did not arise in the case, and therefore it does not have the force and effect of authority. Wood, Justice, in Shirly v. Ayres, says the delivery of the deed need not be to the party. It may be to another person, with authority from the party, or to a stranger for and on behalf, and to the use of the party, without authority, and if in either case, if unconditional, the deed will take effect instanter. 14 Ohio, 310, citing 7 Conn. 503. In Mitchell v. Ryan, 3 Ohio St. 377, where father had made deed to his daughter and delivered to recorder for record without the daughter’s knoweldge, on what purported to be a valuable consideration, but in fact without a valuable consideration, and subsequently conveyed the premises to a thrid party, it was held that record of the deed was prima facie evidence of its delivery; that delivery of a deed may be to a stranger for the use of the grantee; that such delivery must appear to be for the grantee’s use, but no precise form of words is necessary to the declaration of this purpose; anything that shows the purposeJs enough; and the deed was held to vest the estate to the premises in her, as against a subsequent purchaser from her father. This case also, establishes that the mere fact that the deed was a gift to the grantor’s daughter, did not give him the right to revoke the deed. In Hathway v. Payne, 34 N. Y. 92, it was held, if a deed is only to await the lapse of time, or the happening of some contingency, it is to be [290] deemed the grantor’s deed presently. Where the deed is to be delivered to the grantee on the grantor’s death, the title by relation passes at the time the deed was left for delivery. Russel & Webster, for plaintiff. Peoples & Fish, for defendants. Potter, J. in delivering the opinion says at page 107: “The oases can be multiplied each varying from every other by some nice shade of difference upon the question whether the deed was an escrow in the hands of the depositary or whether the depositary was made the trustee of the grantee. In the former case a second delivery was required, in the latter the title passes at the instant of delivering the deed to the depositary. ” In Wheelright v. Wheelright, 2 Mass. 447, it was held that a deed signed sealed,' delivered and acknowledged, which is committed to a third person as the deed of the grantor to be delivered over to the grantee, on a future event, is the deed of the grantor presently, and a third person is the trustee of it for the grantee. In Tooley v. Dibble, 2 Hill, 641, the father had made a deed to his son, and delivered it to a third person, with directions to deliver it to his son after the grantor’s death but not before, unless both called for it, and after the father’s death the deed was delivered to the son, but in the meantime, and before the father’s death, he had conveyed the land by quit-claim deed, it was held the quit-claim deed passed the title. Also see Ruggles v. Lawson, 13 Johns. 285. In Bury v. Young, 98 Cal. 446, 35 Am. 186, it is said “as before intimated, the views of courts are not uniform as to how and when the deed takes effect. Putsman v. Baker, 30 Wis. 650, 11 Am. 592, says, the title passes full and complete upon the first delivery, and that the depositary becomes the trustee of the grantee, and that the grantor holds a life estate in the property. Stone v. Duvall, 77 Ills., holds the first delivery inchoate Many of the cases hold that the deed becomes operative on the delivery by the depositary after the death of the grantor, and that such delivery relates back to the first delivery for the purpose of carrying the title.” The California court adopts the doctrine announced in Brutsman v. Baker, 30 Wis. supra. In the case in hand the grantor, after the delivery of the lease for life to his wife, had remaining in him the estate in remainder, which was the subject of conveyance by him. Upon the delivery of the deed to the notary, on the terms and for the uses named in the receipt, and the grantee’s acceptance of the receipt, thereby accepting the deed, the notary became the trustee of the grantee, and held the deed in trust for the grantee, and the estate in remainder passed at once to her, and the subsequent destruction of the deed by the grantor, without the knowledge or consent of the grantee, was wrongful, and had not the effect of re-investing the title in the grantor or in defeating the title already in the grantee." The court finds that the plaintiff is entitled to be quieted in her estate against the claims of the defendants. Judgment accordingly. Notice of appeal by the defendants.