MOORE
J.
Complainants
filed a bill to have a deed executed by their father, Barnid
Clark, to the defendant Edith Sparks, declared void and
canceled, as also a lease executed by the defendant Crawford
as general guardian of Edith Sparks, a minor, to her
codefendants, George Sparks and Emma L. Sparks. From a decree
finding that there was no consideration for said deed, and
that it was never delivered to said Edith Sparks nor to any
one in trust for her, and granting the relief prayed, the
defendant Edith Sparks appealed.
The
record discloses that George Sparks first became acquainted
with Barnid Clark, August 15, 1900. Mr. Clark at that time
was 74 years old. Six days later the following paper was
drawn. 'August 21st, 1900. I do hereby
agree to let my farm to you on condition that you board me
do my washing and mending, and keep my horse, pay my taxes,
keep the tools and fences in good repair. On these conditions
you are to have all you raise and make therefrom as long as
we do agree or until I want to sell it, or when you go to
leave the farm in the same condition as when you came and the
same amount of crops. Barnid Clark. George Sparks.' Under
the above agreement George Sparks and Emma L. Sparks, his
wife, taking with them their infant daughter, Edith, who was
born June 6, 1900, immediately entered into possession of the
farm, and Barnid Clark lived with them until the time of his
death, which occurred August 21, 1901. June 26, 1901, Mr.
Clark went before Mr. Brace, a conveyancer, and signed and
acknowledged an instrument which had been prepared by Mr.
Brace at the request of Mr. Clark, the material parts of
which read as follows: 'This Indenture, made this
twenty-sixth day of June, in the year of our Lord one
thousand nine hundred and one (1901) between Barnid Clark, of
the Township of Ashland, County of Newaygo and State of
Michigan, of the first part, and George Sparks and Emma
Sparks (his wife) of the same place, of the second part,
witnesseth, that the said party of the first part, for and in
consideration of certain services hereinafter mentioned to be
performed by them to in hand does by these present grant,
bargain, sell, remise, release, alien and confirm unto Edith
Sparks, daughter of the aforesaid George Sparks, her heirs,
assigns, forever, all that certain piece or parcel of land. *
* * The conditions of this deed referred to above are as
follows: The aforesaid George Sparks and Emma Sparks (his
wife) agree to support and properly care for the said Barnid
Clark during his life, and to care for him and to defray the
expenses of his last sickness, and after his death to defray
all the expenses of his burial. And in consideration of the
faithful performance of these conditions, he, the said Barnid
Clark, agrees to deed as herein specified the above described
premises to Edith Sparks, daughter of said George Sparks. * *
* Together with all and singular the hereditaments and
appurtenances thereunto belonging or in any
wise appertaining: To have and to hold the said premises, as
herein described, with the appurtenances, unto the said Edith
Sparks, and to her heirs and assigns forever. And the said
Barnid Clark, party of the first part his heirs, executors
and his administrators, does covenant, grant, bargain and
agree to and with the said party of the second part, her
heirs and assigns, that at the time of the ensealing and
delivery of these presents, he is well seized of the above
granted premises in fee simple.'. After Mr. Clark's
death this paper was taken by Mr. Sparks to a lawyer. Some
doubt was entertained as to its effect, and an arrangement
was made between the complainants, Mr. Sparks, and his wife
by which the latter were to retain the crops and certain
stock and the possession of the farm until November 25, 1901,
and they in turn surrendered the paper before referred to.
Later it was concluded that the rights of Edith Sparks under
the paper could not be surrendered by her parents, and that
the paper was a valid deed. A guardian was appointed for
Edith, and the guardian executed upon her behalf a lease of
the premises to her father, George Sparks. Soon thereafter
this bill was filed. The case was heard in open court.
It is
claimed by complainants that the instrument is not a deed,
but an agreement to make a deed in the event that certain
things were done which never were done. It is also claimed
Mr. Clark was not competent to make the paper when it was
made. That it was made without consideration, and that it was
not delivered. In our view of the record, the last-named
question is the only one we need consider. In Taft v.
Taft, 59 Mich. 185, 26 N.W. 426, 60 Am. Rep. 291, the
court said: 'The authorities are all agreed that no deed
can be valid without delivery by the grantor. It must be made
operative by his act while he is able to act. There are cases
where deeds and mortgages found to have been in custody of
the grantor at his death have been held valid, but this has
been done on proof, or facts amounting to proof, that he has
made an effectual delivery, and become a mere custodian of the deed thereafter. In every case that we have
discovered the question has been whether the
deed had been delivered. No doubt, in some cases presumptions
may have been stronger than in others, but the fact has been
considered as absolutely essential, and, where the grantor
has retained control of the title, it has been regarded as
conclusive. One reason for this is found in the doctrine
which, both under the statute of frauds and independent of
it, is equally clear, that the purport of a deed cannot be
changed by parol, and that no condition or reservation
contrary to its terms is valid. A deed of conveyance in
present terms is inconsistent with the retention of a life
estate, and from the time when the deed is delivered as a
conveyance the whole title goes with it, and it becomes
irrevocable. Some difficulty was apparently raised about
delivery where the grantee was ignorant of the transfer, but
it has long been settled that a delivery to any third person,
intended to make the conveyance operative, is a legal
delivery. Dow v. Knight, 5 Barn. & C. 671;
Hosley v. Holmes, 27 Mich. 416, and notes;
Souverbye v. Arden, 1 Johns. Ch. 240. But a delivery
to a third person, or even to the grantee, may be made for
other purposes than to give the deed effect (Johnson v.
Baker, 4 Barn. & Ald. 440); and the mere fact that it is
put into their hands, if not as a completed transfer, will
not bind the grantor. Thus, in Jackson v. Phipps, 12
Johns. 418, and in Austin v. Register, 41 Mich. 723
, the deposit of a deed with a public officer,
but not for record, and with no purpose of giving the deed
effect, was held no such delivery. In Prutsman v.
Baker, 30 Wis. 644 , a deed in a third
person's hands, subject to the grantor's orders, was
held not delivered. And cases not unfrequently arise where a
deed is handed to a grantee for inspection by himself or his
counsel, or for some temporary purpose, where there is no
completion of the transfer. Johnson v. Baker, supra;
Gilbert v. North American Fire Ins. Co., 23 Wend. 43
. In Jackson v. Dunlap, 1 Johns.
Cas. 114 , a deed duly executed, but
retained by the grantor until the land should be paid for,
and he dying before payment, was held inoperative. In
Stilwell v. Hubbard, 20 Wend. 44, a deed made by the
grantor, and retained by him with the distinct understanding
that it would become operative at his death, and found among
his papers with a will which it was designed
to alter, was held void for want of delivery during life. In
Fisher v. Hall, 41 N.Y. 416, if was held, after a
careful discussion, that, where a deed was retained in the
grantor's custody, there must be unequivocal proof of a
legal delivery, intended to be operative. In Wellborn v.
Weaver, 17 Ga. 267 , where a deed was
intrusted to grantor's agent, to be delivered after
death, it was also held that there could be no continuance of
agency after death, and that there was no valid
delivery.' See, also, Thatcher v. St. Andrew's
Church, 37 Mich. 264; Schuffert v. Grote, 88
Mich. 650, 50 N.W. 657, 26 Am. St. Rep. 316; Chick et al.
v. Sisson, 95 Mich. 412, 54 N.W. 895; Burk v.
Sproat, 96 Mich. 404, 55 N.W. 985.
The
necessity of delivery to give effect to a deed is not in
doubt, and it becomes necessary to consider the testimony
bearing upon that question. Mr. Brace testified, upon direct
examination, that: 'I suggested to him that he leave it
with the judge of probate, or some person, any one whom he
thought best, to be given to Mr. Sparks after he was dead. He
says, 'No, I am going to keep this deed myself until just
before I die, and then I am going to give it to George
Sparks, myself.' I says, 'That is all right, but I
would just make that as a suggestion.' 'Well,' he
says, 'I am going to do it that way.' There was
nothing more said about the disposition of the deed, and
shortly after that he went away.' His cross-examination
did not materially differ from this. Mrs. Brace testified
'Q. Just give your recollection of what he said. A. He
says, 'Old Barnid knows what he is about, and he is going
to keep the deed with him until just before he dies.' Q.
Then what? A. 'Then I will give it to George
Sparks.'' Mr. George Sparks testified as follows:
'Clark had boarded with me up to the date of the deed. I...
