O'Brien v. O'Brien

• Decision Date: 19 February 1910
• Citation: 125 N.W. 307,19 N.D. 713
• Court: North Dakota Supreme Court

125 N.W. 307

19 N.D. 713

JOHN T. O'BRIEN v. JOHN O'BRIEN ET AL

Supreme Court of North Dakota

February 19, 1910

Appeal from District Court, Pembina County; Kneeshaw, J.

Action by John T. O'Brien against John O'Brien and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Affirmed.

Scott Rex, for Appellant.

Delivery of deed to a third party to be handed to the grantee at grantor's death, conveys absolute title subject to grantor's life interest. Arnegard v. Arnegard, 7 N.D. 475, 75 N.W. 797; Haeg v. Haeg, 53 Minn. 33, 55 N.W. 1114; Wittenbrocke v. Cass, 110 Cal. 1, 42 P 300; Bury v. Young, 33 P. 338; Wilhoit v. Salmon et al., 80 P. 705; Hutton v. Cromer, 85 P. 483; Standiford v. Standiford, 97 Mo. 231, 3 L.R.A. 299; Ruez v. Dow, 45 P. 867; Foreman v. Archer, 106 N.W. 372; White v. Watts, 92 N.W. 660; Crooks v. Crooks, 34 O. S. 610; Connard v Colgan, 55 Ia. 538, 8 N.W. 351; Douglas v West, 141 Ill. 455, 31 N.E. 403; In re Cornelius Estate, 91 P. 329; Schreckhise v. Wiseman, 45 S.E. 745.

The law presumes acceptance of a beneficial grant; and where it is coupled with a burden, declaration and acts of beneficiary indicating his intention to claim, show acceptance. 9 Am. & Eng. Enc. Law 162; 13 Cyc. 566, 571-b; White v. Watts, (Ia.) 92 N.W. 660; Haenni v. Bleisch (Ill.) 34 N.E. 153; Gould v. Day, 94 U.S. 405, 24 L.Ed. 232; Tibbals v. Jacobs, 31 Conn. 428; Thompson v. Calhoun, 74 N.E. 775; Swisher v. Palmer, 106 Ill.App. 432; Emmons v. Harding (Ind.) 70 N.E. 142.

Magnus Brynolfson for Respondent.

To defeat the power of recall, the grantor must clearly and unequivocally evidence an intent and purpose to part with contract of deed for all time. Arnegaard v. Arnegaard, et al., 75 N.W. 797; Kittoe v. Willey, et al., 99 N.W. 337; Bury v. Young, 33 P. 338; Porter v. Woodhouse, 22 A. 299; Pratt v. Griffin, 56 N.E. 819; Foreman v. Archer 106 N.W. 372.

Intent is a question of fact. Arnegard v. Arnegard, Supra;; Kittoe v. Willey, et al., Supra; Bury v. Young, Supra; Foreman v. Archer, Supra; Davis v. Ellis, 19 S.E. 399; Kneeland v. Cooperthwaite, 115 N.W. 1026.

Right to revoke need not be expressly reserved. Cole v. Cole, 108 N.W. 101.

If, where intent to make grant absolute accompanied the original deposit, grantor can still revoke, pending acceptance by grantee. Arnegaard v. Arnegaard, supra; Foreman v. Archer, supra; Williams v. Daubner, 79 N.W. 748.

If deed imposes a burden upon grantee, acceptance is not presumed. Thompson v. Dearborne, 107 Ill. 87; Littler v. City, 106 Ill. 353; Darey Bank v. Webster 44 N.H. 264; Gifford v. Corrigan, (N.Y.) 11 N.E. 498; Blass v. Terry, (N.Y.) 50 N.E. 953; Kellogg v. Cook (Wash.) 52 P. 233; Mitchell v. Ryan, 3 Oh. St. 377.

OPINION

MORGAN, C. J.

The issue in this case involves the validity of the deed, under which the plaintiff claims the ownership of 80 acres of land in Pembina county. Plaintiff and the defendants are the children and heirs at law of Johanna O'Brien, now deceased, who was the owner of this land, and executed the deed under which the plaintiff claims in December, 1901. The deed was drawn up by W. J. Burke, an attorney at law, to whom the grantor delivered it immediately after its execution and acknowledgment, with instructions that he keep the same until her death, and then deliver it to the plaintiff. Subsequently, and in October, 1904, said Burke delivered the deed to Jeremiah O'Brien, plaintiff's brother, upon representations by him to Burke that the grantor was very ill and desired the return of the deed. Prior to the return of the deed, the grantor had made a will in which she devised this land to the plaintiff, subject to money bequests to the defendants, which were made a charge upon the land. The issues made by the pleadings are as to the validity of such deed and its final delivery as a conveyance to Burke. The issues were tried to the court without a jury, who made findings of fact and conclusions of law, to the effect that there had been no delivery of the deed with intent to convey the title to the grantee therein named. Judgment was entered pursuant to such findings, and the plaintiff has appealed, and demands a review of the entire case under section 7229, Rev. Codes 1905. The deed was not produced in court until after the case had been once finally submitted for decision. The contents of the deed were therefore shown by secondary evidence. After the case had been submitted as stated, the defendant asked leave to reopen it, and such leave was granted, and further testimony was produced. At the second hearing the deed was produced by the defendants and was offered in evidence.

From the evidence we are to determine whether the title vested in the plaintiff under the deed; if so, the will thereafter executed was ineffectual for any purpose. The legal principles involved here are not in dispute. It is as to the application of these principles to the facts, and the conclusion to be deduced from the facts, that there is an irreconcilable conflict between the parties. In Arnegaard v. Arnegaard, 7 N.D. 475, 75 N.W. 797, 41 L.R.A. 258, involving an issue similar to this case, the prevailing rule is adopted that whether there is a delivery or not is a question of fact to be found from all the circumstances surrounding the transaction. In that case it was said: "Unless, therefore, we are able to discover from this record that the grantor absolutely parted with all control over the deed, and intended it to operate as a present conveyance, subject to his life interest, we must adjudge the instrument void for want of delivery. See 2 Jones Real Prop. 1236. The learned district judge found in favor of an actual delivery, and as he had before him witnesses on whose testimony his finding is based, we will not disturb it, unless it appears to be clearly erroneous." If the deed is actually or constructively delivered to a third person for the benefit of the grantee, by the grantor, without any conditions or expressed reservations, and with intent that all control over it terminates at such delivery, such delivery effectually places the deed and the title to the land subject to the grantee's control at the grantor's death. In 9 A. & E. Enc. Law (2d Ed.) p. 157, the rule is stated as follows: "A grantor may deliver a deed to a third person to hold until after the grantor's death, and then deliver it to the grantee. Such a delivery is perfectly valid, but the deed must be left with the depositary without a reservation by the grantor, expressed or implied, of the right to retake it, or otherwise control its use."

In Trask v. Trask, 90 Iowa 318, 57 N.W. 841, 48 Am. St. Rep. 446, the court said: "It is well settled, and may be said to be an established rule, that a deed may be delivered to a third person for the grantee, and, if subsequently assented to by the grantee, it will be as good a delivery as if made directly to the grantee, provided there is no reservation of the right in the grantor to countermand it." See, also, White v. Pollock, 117 Mo. 467, 22 S.W. 1077, 38 Am St. Rep. 671; Bury v. Young, 98 Cal. 446, 33 P. 338, 35 Am. St. Rep. 186; Frank v. Frank, 100 Va. 627, 42 S.E. 666; Haeg v. Haeg, 53 Minn. 33, 55 N.W. 1114; Wittenbrock v. Cass, 110 Cal. 1, 42 P. 300; Wilhoit v. Salmon, 146 Cal. 444, 80 P. 705; Hutton v. Cramer, 10 Ariz. 110, 85 P. 483, 103 P. 497; White v. Watts, 118 Iowa 549, 92 N.W. 660; Ruiz v. Dow, 113 Cal. 490, 45 P. 867.

In the case at bar the trial court found that there was no intention to deliver the deed so as to convey title at once, and denied the relief demanded by the plaintiff in his complaint. The question is before us for retrial, and we are called upon to review all the evidence. In other words, this court is to pass upon the question of fact as to whether there was an intention, on the part of the grantor, to relinquish forever control over the deed and the title to the land, under the same rules and under the same evidence as the trial court did. We will now state what the evidence is, as shown by the record. In reference to the deed Burke testified as follows "I drew the deed from Johanna O'Brien to J. T. O'Brien, this plaintiff, for the land described in the complaint, and I held the deed, and was to hold it until her death, and deliver it to the plaintiff. I took the deed home with me, and put it in an envelope and sealed it up and put it in my safe. I drew the deed up under instructions from Mrs. O'Brien. The instructions were for me to hold the deed until her death, and then to deliver it to this plaintiff. I made a memorandum at the time of the terms and conditions on which this deed was in my possession. That memorandum was made the day I put the deed in my safe. The deed was drawn a few days before that. The deed was delivered to me immediately after it was drawn. The deed was acknowledged before me as a notary public. Mrs. O'Brien did not ask my advice on any matter in connection with this deed when she asked me to draw it. She told me what she wanted, and I did it. The deed lay in my safe, and I kept it until the fall of 1904. Jeremiah O'Brien came to my place in Bathgate on a Sunday, and said that his mother wanted this deed. He told me that his mother was seriously sick and was about to die, and she had requested him to get the deed. I let him have it; opened the envelope and gave him the deed. I have not seen the deed since, and I have no knowledge of its whereabouts. So far as I know, the signing of the deed was the voluntary act of Mrs. O'Brien. No consideration passed in my presence. In drawing up the deed and keeping it I acted wholly on her request. That was the first time that Mrs. O'Brien had ever sent for me. She sent for me at other times since the drawing of the deed. She told me what she...