Brown v. Westerfield

• Court: Nebraska Supreme Court
• Writing for the Court: NORVAL
• Citation: Brown v. Westerfield, 47 Neb. 399, 66 N.W. 439 (Neb. 1896)
• Decision Date: 04 March 1896
• Parties: BROWN ET AL. v. WESTERFIELD ET AL.

47 Neb. 399

66 N.W. 439

BROWN ET AL.

v.WESTERFIELD ET AL.

Supreme Court of Nebraska.

March 4, 1896.

Syllabus by the Court.

1. An allegation in a pleading that the grantor “made and executed” a deed includes all acts essential to the completion of the muniment of title,--the delivery of the instrument to the grantee, as well as the signature of the grantor.

2. The loss or destruction of a deed, after delivery thereof, does not divest the title of the grantee.

3. The delivery of a deed is essential to render the conveyance operative.

4. Delivery is purely a question of intent, to be determined by the facts and circumstances of each particular case.

5. It is not essential to the validity of a deed that it should be delivered to the grantee personally. It is sufficient if the grantor delivers it to a third person, unconditionally, for the use of the grantee, the grantor reserving no control over the instrument.

6. A mother signed and acknowledged a deed before a justice of the peace, conveying to her minor daughter certain real estate, and delivered the deed to the justice for the use and benefit of the grantee, without any reservation of control, with the intention and understanding that the justice should retain the custody of the instrument until the grantor's death, when he was to file it for record. The mother subsequently told the daughter that the property belonged to the latter, and that it had been fixed so she would have a home. Held, that the delivery to the justice was sufficient to pass the title to the property to the grantee at the date of such delivery.

Appeal from district court, Lancaster county; Tuttle, Judge.

Action by Ruthie Brown and others against Sam Westerfield and others. From the judgment rendered certain defendants appeal. Affirmed.Pound & Burr, for appellants.

B. F. Johnson and T. F. Barnes, for appellees.

NORVAL, J.

This was a suit by Ruthie Brown against Sam Westerfield and Ida Westerfield, his wife, and Louis and Jimmie Brown, to quiet the title in plaintiff to the south half of lot C, a subdivision of lots 4, 5, and 6 in block 28 of Kinney's O Street addition to the city of Lincoln. The petition alleges that plaintiff is the only living child of Hannah and James Brown; that on the 20th day of June, 1883, the said Hannah Brown, now deceased, being the owner in fee simple of the real estate above described, together with her husband, said James Brown, made and executed a warranty deed to the plaintiff of said property, reserving a life estate therein to said James Brown; that said deed has become lost or stolen,--plaintiff is unable to state which, but is informed that the same was placed in the hands of Sam Westerfield, one of the defendants; that, though demand for the same has been made upon him, he has refused to comply therewith, and disclaims all knowledge of the deed; and that the defendants Sam Westerfield, Jimmie and Louis Brown, are not the issue of the said James and Hannah Brown, but are children of said Hannah Brown by a former husband. James Brown, plaintiff's father, was, subsequent to the institution of the suit, joined as party plaintiff; and, no service of summons having been had upon Louis and Jimmie Brown, the action was dismissed as to them. Sam Westerfield answered, admitting that plaintiff is the child and one of the heirs at law of said Hannah Brown, and denying all other averments of the petition. By way of cross petition, Westerfield sets up that Hannah Brown and her husband, James Brown, executed and delivered a mortgage upon said lot C to one Mary Jane Carman, to secure the payment of $27 and interest; that the defendant is the owner of said mortgage; and that the debt for which the same was given to secure has not been paid, nor any part thereof. The answer prays for the dismissal of plaintiff's suit, and for foreclosure of said mortgage. Upon the hearing a decree was entered quieting the title to the premises in controversy in Ruthie Brown, subject to the life interest therein of her father, and foreclosing said mortgage. From the decree quieting the title the Westerfields appeal.

The appellants contend, in argument, that the petition is defective, and fails to state a cause of action, in that it contains no specific allegation that the deed in question was ever delivered. The delivery of a deed is indispensable to its validity. While it is true there is no direct averment in the pleading that the deed had been delivered, yet this is not fatal. It is averred that the grantors “made and executed a warranty deed to the plaintiff” to the property. “Execute” is defined by Webster thus: “To complete, as a legal instrument; to perform what is required to give validity to, as by signing, perhaps sealing and delivering; as to execute a deed, lease, mortgage, will,” etc. And the same authority gives the following as one of the definitions of the word “execution”: “The act of signing and sealing and delivering a legal instrument, or giving it the forms required to render it valid; as the execution of a deed.” In 1 Warv. Vend. p. 482, it is said: “The term ‘execution’ primarily means the accomplishment of a thing,--the completion of an act or instrument; and in this sense it is used in conveyancing, to denote the final consummation of a contract of sale. The term properly includes only those acts which are necessary to the full completion of an instrument, which are the signature of the disposing party, the affixing of his seal to give character to the instrument, and its delivery to the grantee.” In this state the seal of the grantor is unnecessary, and an acknowledgment is no part of the deed conveying land other than the grantor's homestead, but an unacknowledged deed to such real estate, otherwise perfect, as between the parties, passes the title. The averment in the petition that the grantors “made and executed” the deed, under the definitions already given, includes the delivery of the instrument, as a conveyance of the property.

The uncontradicted testimony shows that James and Hannah Brown signed and acknowledged a deed of conveyance to their daughter, Ruthie Brown, one of the plaintiffs herein, for the premises in controversy; reserving a life estate therein to James Brown, one of the grantors. It was never actually delivered to the grantee in person, nor was it ever placed upon record. The instrument is not now to be found. A deed is merely the evidence of the grantee's title. The loss or destruction of the deed did not divest plaintiffs of their title, if they ever acquired one. And whether the title ever passed from Mrs. Brown, the owner of the fee, to this property, depends upon whether the facts disclosed by this record amount, in law, to a delivery of the deed in question.

It appears from the evidence adduced that Hannah Brown, being the owner of the property in dispute, and another tract of the same size, adjoining it on the north, on the 20th day of June, 1883, caused two...