Brown v. Brown

• Citation: 66 Me. 316
• Parties: OLIVER D. BROWN et al. v. ALDEN U. BROWN. 1876.
• Decision Date: 23 December 1876
• Court: Supreme Judicial Court of Maine (US)

66 Me. 316

OLIVER D. BROWN et al. v. ALDEN U. BROWN.

1876.

Supreme Judicial Court of Maine.

December 23, 1876

ON REPORT.

WRIT OF ENTRY, to recover two-thirds part of a lime rock quarry, and damages for rock taken out by the defendant, dated February 23, 1875.

Plea, general issue.

The plaintiffs and the defendant, are brothers, and only surviving children of Oliver B. Brown, who was the owner of the premises for more than twenty years, and until he died November 15, 1873, unless they were conveyed by the deed to the defendant, hereinafter mentioned.

Oliver B. Brown made four separate deeds of real estate, one to each of his three living children, and one to the two sons of his deceased daughter, each nominally for a similar consideration. He then made a will which provided, after the payment of his debts and funeral expenses, and a legacy of $100, to each of his two grand-daughters, and one dollar to each of his two grand-sons, that his three sons should be residuary legatees, and that the defendant should be his executor.

The will was probated the third Tuesday of December, 1873, and the legacies mentioned therein were paid in January, 1874 and it was admitted that the defendant had taken lime rock from the quarries, as alleged in the writ.

The defendant offered in evidence, deed from Oliver B. Brown to the defendant, Alden U. Brown, dated December 21, 1869, and recorded November 29, 1873. Plaintiffs objected to the deed, and denied that it was legally delivered; they admitted that it was duly signed and acknowledged. Defendant also put in deed, Oliver B. Brown to John Brown, dated January 31, 1866, and recorded November 26, 1873. Also deed from Oliver B. Brown to Oliver D. Brown, dated December 13, 1861, and recorded November 24, 1873.

It was admitted that these three deeds were delivered by Oliver B. Brown to Charles C. Lovejoy, December 31, 1869, together with the will referred to, with written instructions in respect to their delivery, as follows:

" To Charles C. Lovejoy:

Admonished by the infirmities of age and the events transpiring around me that this is not my home, or continuing city, I have thought proper to make arrangements for the final distribution of my estate to and among my family and heirs-at-law, while I have strength and capacity so to do, and with your consent herewith commit to you for safe keeping and delivery, four deeds of certain real estate, one to and for each of my sons, Alden U. Brown, John Brown, and Oliver D. Brown, and one to and for my grandsons, Oliver H. Whitney, and Charles G. Whitney, and also my last will and testament. In doing this I am not unmindful that in this world of change, a state of things may arise to make some alteration in my arrangements both desirable and proper, and therefore expressly reserve the right at any time to withdraw said papers, any or all of them for that purpose from your care and keeping. But in the event of their being permitted to remain in your possession uncalled for by me during my life, you are hereby requested and directed without further advice from me, immediately upon my decease in your life time, to deliver said deeds to my said sons, to each one the deed for him intended, and to my said grandsons the deed for them made and designed, and also to place in the hands of my said son, Alden U. Brown, my last will and testament aforesaid, that the same may be proceeded with according to law.

Oliver B. Brown.

Rockland, December 31, 1869.

Witness: William Thompson."

It was admitted that no other delivery of either of the deeds was made by the grantor in his life time, and that Lovejoy, December 31, 1869, took possession of the deeds and will, and the paper containing the written instructions, and retained them until after the decease of the grantor, whereupon he delivered the deeds to the several grantees who received them, and caused them to be recorded, they not having been recorded in the life time of the grantor; and that he delivered the will to the executor, who caused the same to be duly probated.

The deed to the defendant covers the premises described in the writ.

" By consent of parties the case was withdrawn from the jury, and is submitted to the full court to determine whether there was a legal delivery of the deed from Oliver B. Brown to the defendant, so that the title passed to him; if there was not, the defendant is to be defaulted; and if the court decides that there was a legal delivery, the construction of the deed is to be determined, and the question decided whether the plaintiffs have any interest in the premises, and if so, what, and such judgment to be rendered as the law upon the facts reported, requires, and the parties agree that the amount and value of the lime rock taken by the defendant, and the damages shall be assessed by Francis Cobb, or some other party to be agreed upon by them, and that the case shall be remanded for that purpose.

A. P. Gould & J. E. Moore, for the plaintiffs, contended that the deed of December 21, 1869, was not duly delivered to the defendant, nor to any person for him.

T. P. Pierce, for the defendant, contended that the delivery was sufficient; and even if it were not, that as between the parties, the plaintiffs having accepted and placed upon record their deeds delivered to the same depositary, at the same time, under the same circumstances, before the defendant caused his deed to be recorded, and having suffered him to take possession of the quarry, and operate it without objection for a long time, were estopped to deny the validity of the defendant's title. Smith v. Gould, 34 Me. 443. Hyde v. Baldwin, 17 Pick. 303. Dewey v. Bordwell, 9 Cow. (N. Y.) 66.

VIRGIN J.

It is admitted that the deed from Oliver B. Brown to the defendant was signed and acknowledged, but the delivery is denied. All the facts pertaining to the delivery are also admitted; and the question submitted is whether they amount in law to delivery. If they do not, " the defendant is to be defaulted."

The deed in question (with three others to as many named grantees, together with his last will and testament) was committed by the grantor to one Lovejoy " " for safe keeping and delivery" with written instructions in which is found the following language. " I am not unmindful that in this world of change, a state of things may arise to make some alteration in my arrangements both desirable and proper, and therefore expressly reserve the right at any time to withdraw said papers, any or all of them for that purpose from your care and keeping. But in the event of their being permitted to remain in your possession uncalled for by me during my life, you are hereby requested and directed without further advice from me, immediately upon my decease in your life time, to deliver said deeds" to the respective grantees, & c.

The real original design and intention of the father in sealing the deeds to his children and grand-children, and committing them to the depositary, are so clearly expressed as to exclude all cavil. Generally the law lays great stress upon the intention of parties as expressed in deeds and wills; and when it has once ascertained from the terms used, the intention, it will lend its aid in executing the expressed will of the parties. But the intention of an owner of property in his attempted act of transferring it is not necessarily and always supreme. The law has prescribed certain plain rules to be observed in the execution of such important instruments as those by which the title to real property is transferred; and whatever courts may sometimes have done in their zeal to carry into effect the intention of parties, the law itself does not permit its salutary rules to be broken or bent to meet the exigencies of ignorance or negligence; deeming it better on the whole, that the intention of a party in disposing of his property should occasionally fail, than that its important and firmly established rules made and applied for the benefit of all be overridden.

It is elementary law that the delivery of a deed is as indispensable as the seal or signature of the grantor. Without this act on the part of the grantor, by which he makes known his final determination to consu mmate the conveyance, all the preceding formalities are impotent to impart vitality to it as a...