Bickford v. Mattocks

• Decision Date: 10 December 1901
• Parties: BICKFORD v. MATTOCKS.
• Court: Maine Supreme Court

50 A. 894

95 Me. 547

BICKFORD

v. MATTOCKS.

Supreme Judicial Court of Maine.

Dec. 10, 1901.

(Official.)

Report from superior court, Cumberland county.

Action by Ida A. Bickford against Charles P. Mattocks for money had and received. Case reported, and judgment for defendant.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

J. H. Fogg, for plaintiff.

W. K. & A. E. Neal, for defendant.

SAVAGE, J. The defendant's intestate, Thomas R. Heath, loaned $500 to one Sturgis. The latter, by direction of Heath, gave his note for the same, payable to the plaintiff. The note was secured by a mortgage running to the plaintiff. The plaintiff was not present, and knew nothing of the transaction at the time. After the note and mortgage were executed, Heath asked the attorney who was the scrivener to get the mortgage recorded, and, when the mortgage was received from the registry of deeds, to mail it, with the note, to the plaintiff. The attorney filed the mortgage in the registry, and took possession of the note. He did not take the mortgage from the registry. He forgot it, or, to use his own expression, "it left his mind." He kept the note for about a year, and then delivered it to Heath. In the meantime the maker of the note bad made certain payments on it to the attorney, who paid the money to Heath. Afterwards the balance due was paid to Heath, and he surrendered the note to the maker. Neither the note nor the mortgage was ever delivered to the plaintiff by Heath or the attorney; nor were any of the moneys collected by Heath paid or delivered to her. Some months after the note and mortgage were executed, she executed, at the request of Heath, a release of a portion of the mortgaged premises, and when the note was paid she discharged the mortgage, likewise at the request of Heath.

The plaintiff claims that the transaction constituted a gift of the note to her, and has brought this suit to recover the amount of the proceeds of the note which were paid to the defendant's Intestate. The defendant claims that no gift was intended, and that Heath adopted the plan of making the note payable to the plaintiff, who was his niece, in order that he might more easily escape taxation upon the loan; and, further, that, if a gift was intended, that it never became complete and effective for want of delivery.

We think the evidence preponderates in favor of the theory that Heath intended to give the note to the plaintiff. He so declared his intention on the occasion when the note was made, and even before then; and it may be that he thought he had accomplished his purpose, for shortly after the note was made he told the plaintiff and others that he had given her $500; and about the time the note was paid in full, speaking with reference to that fact, he asked her what he should do with the money, to which she replied, "Keep it for me, and invest it again."

To constitute a valid gift inter vivos, it must be made with intent that it shall take effect immediately and irrevocably, and it must be fully executed by a complete and Unconditional delivery. These principles are elementary. Delivery is essential. Dole v. Lincoln, 31 Me. 422. Mere intention can-hot take the place of it, nor can words, nor can actions. Thornt. Gifts, 105; Drew v. Hagerty, 81 Me. 231, 17 Atl. 63, 3 L. R. A. 230, 10 Am. St. Rep. 255; Donnell v. Wylie, 85 Me. 143, 26 Atl. 1092. It is the act which completes the gift. It is the test which shows whether the gift was actually consummated, as well as intended. Since many of the cases cited by counsel on both sides in this case involved only gifts causa mortis, it is proper to observe that, while delivery is essential to the validity of each of these classes of gifts, and while there is in this respect no difference in the requisites of good delivery, the effect is widely different. Thornt. Gifts, 105. In gifts causa mortis the delivery is made in expectation of death, but so long as the donor lives the gift is ambulatory, revocable. Only death completes the gift. Before death it is subject to the will of the donor; while in gifts inter vivos it is the delivery itself which completes the gift and makes it irrevocable. The delivery must be absolute. Dresser v. Dresser, 46 Me. 48; Allen v. Polereczky, 31 Me. 338; Robinson v. Ring, 72 Me. 140, 39 Am. Rep. 308.

Now, in the case at bar, it is not claimed that there was any delivery whatever to the plaintiff personally of the note or its proceeds. But delivery may be made to the donee; or, as is commonly, but somewhat loosely, said, it may be made to a third person for the donee, or for the use of the donee. Borneman v. Sidlinger, 15 Me. 429, 33 Am. Dec. 626; Hill v. Stevenson, 63 Me. 364, 18 im. Rep. 231; Dole v. Lincoln, supra.

Not every delivery to a third person is a delivery for the donee, or for the use of the donee, in the sense in which these phrases are used in the cases cited. There may be a. delivery to a third person which constituteshim the agent of the donor, and there may be a delivery which constitutes him a trustee for the donee, and the distinction lies in the intention with which the delivery is made. If the donor deliver the property to the third person simply for the purpose of his delivering it to the donee as the agent of the donor, the gift is not complete until the property has actually been delivered to the donee. Such a delivery...