Barnard v. Thurston

• Decision Date: 29 May 1902
• Docket Number: 13,009 - (88)
• Citation: 90 N.W. 574,86 Minn. 343
• Parties: FREDERICK BARNARD v. MARGARET THURSTON
• Court: Minnesota Supreme Court

90 N.W. 574

86 Minn. 343

FREDERICK BARNARD v. MARGARET THURSTON

Nos. 13,009 - (88)

Supreme Court of Minnesota

May 29, 1902

Action in the district court for Le Sueur county to compel the surrender to plaintiff of a warranty deed alleged to have been executed and delivered to him by defendant and her husband, John Thurston, during the latter's lifetime, and to determine the adverse claim of defendant to the premises conveyed thereby. The case was tried before Cadwell, J., who found in favor of plaintiff. From an order granting a motion for a new trial, plaintiff appealed. Reversed.

SYLLABUS

Delivery of Deed.

The issue herein was whether a certain deed was delivered to the plaintiff in the lifetime of the grantor. The trial court found certain evidentiary facts relevant thereto, which are set forth in the opinion. Held, that they warrant the conclusion that the deed was so delivered.

P. J McLaughlin and Thos. Hessian, for appellant.

W. H Leeman, for respondent.

OPINION

START, C.J.

This is an action to compel the defendant to surrender a deed to the plaintiff of the land described in the complaint, and to have it adjudged that he is the owner thereof, subject to the life estate of the defendant. The trial court found the facts to be, in effect, the following:

1. On and prior to April 7, 1900, John Thurston was the owner in fee of the land in question, which consisted of a farm of eighty acres in the county of Le Sueur.

2. He and the defendant were then husband and wife, and that relation continued until his death, on April 13, 1900. He died leaving no issue. Neither he nor his wife was related in any way to the plaintiff, who is thirty-five years of age, and came to this country from England when fifteen years of age, Mr. Thurston paying his passage therefrom. After his arrival in this country he lived with and worked for Mr. Thurston until two years prior to the latter's death. He was paid for his work, and Mr. Thurston was repaid the amount advanced for his passage.

3. On April 7, 1900, Mr. Thurston and his wife, the defendant, duly signed, sealed, and acknowledged a warranty deed, which was duly witnessed, wherein and whereby they conveyed the land in question to the plaintiff, reserving the use, occupancy, profits, and rents thereof to themselves, and each of them, during their natural lives. Mr. Thurston then, in the presence and with the consent of the defendant, delivered the deed to Mr. Thomas H. Smullen, the conveyancer who drew it and before whom it was acknowledged, with instructions to put the necessary revenue stamps thereon, giving to him the money for that purpose, and to deliver the deed to the plaintiff. When the deed was so delivered to Mr. Smullen, he stated to the defendant that, if he did not find the plaintiff, he would bring the deed back, and give it to her, and she could hand it to the plaintiff, and she promised to do so. Mr. Smullen duly stamped the deed, but, not finding the plaintiff, he did not on that day, or at any subsequent time, personally deliver the deed to him. He did, however, on that day -- April 7 -- give the deed to the defendant, and told her to give it to the plaintiff; and a day or two before Mr. Thurston's death he informed the plaintiff of the making of the deed, and told him to get it; that it ought to be recorded. The plaintiff said he would do so, and thereupon he asked the defendant for the deed, who informed him there was no hurry about getting it recorded, and that he was sure of getting it. After the death of Mr. Thurston, and on April 16, the plaintiff again asked the defendant for the deed, who replied that she would have it recorded, but when it was recorded she wanted to keep it. The plaintiff again, and on April 21, demanded the deed of the defendant, who then refused to deliver it. She had, in fact, destroyed the deed prior to the making of this demand.

4. The deed in question was a warranty deed in the usual form, and was signed, sealed, and acknowledged by the grantors, and recited that they had signed, sealed, and delivered it in the presence of the subscribing witnesses, naming them. The trial court set out the deed in full in this finding.

5. The deed was delivered by Mr. Thurston and the defendant prior to his death to the plaintiff.

As a conclusion of law the trial court found that the plaintiff was entitled to judgment in his favor against the defendant as follows:

"First. That the plaintiff is the owner in fee of the said premises, subject to the life estate of the defendant therein. Second. That the defendant has no title, estate, or interest in said premises, save and except a life estate therein. Third. That the said John Thurston and the above-named defendant, on the 7th day of April, 1900, made, executed, and delivered to the plaintiff the deed hereinbefore set out in full, said deed to be inserted in the judgment to be rendered herein. Fourth. That a certified copy of the judgment rendered herein be recorded in the office of the register of deeds of said county. Fifth. That the plaintiff recover of the defendant the disbursements of the action. Let judgment be rendered accordingly."

Thereupon the defendant moved the court for a new trial, upon the grounds, among others not here material, following:

"The court erred in its third finding of fact, wherein it finds that the deceased, John Thurston, after the deed in question was signed, delivered the same to one Thomas H. Smullen, and directed the said Smullen to deliver said deed to the plaintiff, for the reason that said finding is not justified by, and is contrary to, the evidence. The court erred in its fifth finding of fact, for the reason that the same is not justified by the evidence, and is wholly unsupported by any evidence whatever. The court erred in its conclusions of law, and each and every of them, as the same are wholly unsupported by any evidence."

The court granted the motion for a new trial on the ground that the fifth finding of fact, that the deed was delivered to the plaintiff by Mr. Thurston and his wife, the defendant, prior to his death, which finding is an inference from the facts set forth in the third finding, is not supported by such facts or the evidence given on the trial. The plaintiff appealed from the order granting a new trial.

The evidence amply supports the finding of the trial court as to the evidentiary facts stated in the third subdivision of its findings. It also appears from the record that Mr. Thurston was ill, and confined to his bed, when the deed was executed and delivered to the conveyancer. And, further, that the statement by the latter to the defendant that, if he did not find the plaintiff, he would bring the deed back, and give it to her, and that she could hand it to the plaintiff, was not made in the room where Mr. Thurston then was, but that it was made to the defendant in an adjoining room by the conveyancer upon his own motion, as he then knew that the plaintiff had left his team at Mr. Thurston's, and was expected to return for it. One question only is presented for our decision by the record, viz.: Do the evidentiary facts stated in the third subdivision of the court's findings support the ultimate fact or conclusion stated in the fifth subdivision thereof? If they do the original conclusions of law by the court were correct and the order granting a new trial must be reversed; otherwise it must be affirmed. Or, in other words, do the facts found in subdivision 3 of the findings justify the inference or conclusion that the deed was delivered to the plaintiff before the death of Mr. Thurston? We...