Atwood v. Atwood

• Decision Date: 28 September 1896
• Citation: 15 Wash. 285,46 P. 240
• Court: Washington Supreme Court
• Parties: ATWOOD v. ATWOOD ET AL.

46 P. 240

15 Wash. 285

ATWOOD v. ATWOOD ET AL.

Supreme Court of Washington

September 28, 1896

Appeal from superior court, Walla Walla county; William H. Upton Judge.

Action by Eslie Atwood against Willie Atwood and others to remove a cloud from plaintiff's title to certain real estate. From a judgment for defendants, plaintiff appeals. Affirmed.

Thomas & Dovell, for appellant.

Edmiston & Miller, for respondents Whiteaker Dixon, and Williams.

Chadwick, Fullerton & Wyman, for respondent Kenoyer.

HOYT, C.J.

The fact upon which the rights of the parties in this action depends is as to whether or not a certain deed found among the papers of the grantor after his death had been so delivered in his lifetime that it became operative, and conveyed the title to the land therein described to the grantees therein named. The cause was tried before a referee who made findings of fact, upon which he founded a conclusion of law to the effect that the deed had been so delivered. Exceptions having been taken to the findings of the referee the superior court set aside such findings, and made new findings of fact, and thereon found, as a conclusion of law, that the deed had not been delivered so as to become operative. A careful examination of all of the evidence introduced upon the trial satisfies us that the findings made by the superior court were warranted by such evidence; and, in our opinion, but one conclusion of law could be drawn therefrom, and that was the one which the superior court drew when it found that the deed had not been delivered. Not only are we satisfied that the findings by the superior court fully supported its conclusion as to the law, but, in our opinion, the findings of fact made by the referee failed to support his conclusion of law drawn therefrom, and were such that the proper conclusion would have been that the deed had not been delivered.

In coming to these conclusions, we have not lost sight of the able argument and large array of authorities contained in the brief of appellant, to the effect that the delivery of a deed does not necessarily require any formal act on the part of the grantor; that it is often a question of intention; that a deed may become operative while the manual possession is retained by the grantor. But in such cases, before the court can find a delivery, the intention to consummate the transaction so as to fully vest the title in the grantee must be...