Burnett v. Burnett

• Decision Date: 31 January 1879
• Parties: Ann E. Burnett, Adm'x v. George F. Burnett
• Court: Michigan Supreme Court

40 Mich. 361

Ann E. Burnett, Adm'x v. George F. Burnett

Supreme Court of Michigan

January 31, 1879

Submitted January 22, 1879

Appeal from Livingston. Submitted January 22. Decided January 31.

Decree affirmed with costs.

E. D Kinne for complainant. Title may pass without manual delivery of the deed of conveyance, and even if it remains in the grantor's custody, Souverbye v. Arden, 1 Johns Ch., 239 and cases; Scrugham v. Wood, 15 Wend. 545; 4 Kent's Com., p. 456, note a and cases; Byers v McClanahan, 6 Gill & J., 250; Austin v Fendall, 2 McArthur 362; Hart v. Rust, 46 Tex. 556; Newton v. Bealer, 41 Ia. 334; Burkholder v. Casad, 57 Ind. 418; Tallman v. Cooke, 39 Ia. 402; Adams v. Adams, 21 Wall. 185; Hosley v. Holmes, 27 Mich. 416; Ellis v. Secor, 31 Mich. 185; Wallace v. Harris, 32 Mich. 380; Thatcher v. St. Andrew's Church, 37 Mich. 264; whether the execution of a mortgage does not estop the mortgager from denying his title at the time, Barber v. Harris, 15 Wend. 615.

J. L. Topping for defendant. Delivery is necessary to pass title, Heffron v. Flanigan, 37 Mich. 274; Maynard v. Maynard, 10 Mass. 456; Artcher v. Whalen, 1 Wend. 179; Clark v. Gifford, 10 Wend. 310; Church v. Gilman, 15 Wend. 656; if the grantor dies with the deed in his possession, undelivered, title will not pass, Jackson v. Leek, 12 Wend. 105; Prutsman v. Baker, 30 Wis. 644; Jackson v. Phipps, 12 Johns. 418.

Marston, J. Campbell, C.J., and Graves, J., concurred. Cooley, J.

OPINION

Marston, J.

The bill of complaint in this case was filed for the purpose of foreclosing a mortgage alleged to have been executed by defendant and delivered to Calvin T. Burnett now deceased.

Calvin T. Burnett during his lifetime resided in Washtenaw county. He was the owner of a tract of land in Livingston county, upon which the defendant and his sister were living. It is claimed on behalf of the complainant that Calvin T., wishing to divide this tract between defendant and his sister, pursuant to an agreement previously made, had a deed of conveyance of the north half thereof to defendant and one of the south half to his sister prepared at Ann Arbor; that he and his wife, the present complainant, took said deeds and visited their son and daughter where they resided upon said lands; that while there and upon the 18th day of February, 1873, said deeds were properly executed, and that at the same time two mortgages, one from defendant and one from his sister to said Calvin, were by them respectively executed to secure certain notes, those given by defendant being one for $ 4,300, being the one in controversy, and another for $ 4,000. This second note under a separate agreement made at the same time was to be considered as an advance to the defendant towards his share of his father's estate, and to be accounted for in a certain manner.

It is also claimed that the deeds, mortgages and notes were at the time of the execution thereof retained by said Calvin T. who was to have the same recorded, but which was not done. Calvin T. Burnett died February 6th, 1877. After his decease the deed to defendant was offered him but he refused to accept the same, and the administratrix, on February 14th, 1877, caused the deed and mortgage to be recorded.

The defendant in his answer admits the execution of the notes and mortgage; that $ 500 of the note in controversy was for personal property which he had purchased from his father; that the deed executed by his father to him of the land was not delivered nor intended to be; that his father was to keep said deed, notes and mortgage, and agreed not to record the same, but would wait and see how defendant managed the property, and if not satisfactory that the papers could be destroyed.

The evidence is conflicting. Mrs. Burnett, the complainant, who was present at the time the papers were executed, says: "My husband was to take care of the papers and put them on record at his own expense. He was to see that they were put on record. My husband took them home with him." She farther gives as a reason why they were not at the time placed on record, was that they were to go home by way of Howell and have them recorded, but the sleighing was going off and they got home as quick as they could. She farther testified that her husband three years before his death and again one year before, told her that if the papers were in his possession at the time of his death, to have them recorded, and handed over to the proper parties. Mrs. Burnett's daughter Mrs. Webster, who was present at the time the papers were executed, gives the same version, that Calvin T. Burnett was to take the papers, have them recorded, and then send the deeds to the proper persons, the grantees.

The justice of the peace who took the acknowledgment and others who were present and who on other occasions had conversations with Calvin T. fully sustained the position set up in the answer of defendant. Which under all the circumstances is the more probable and correct view? It is conceded that Calvin T Burnett was a good and prompt business man, while defendant was somewhat addicted to the use of intoxicating liquors, and it is now said that it was on this account and to prevent the defendant from squandering the property that the deed and mortgage were not recorded. It is clear from the testimony of Mrs. Burnett and her daughter that there was no formal delivery of this deed to the defendant. There is not the slightest testimony in the case tending to show that he had at any time possession or control of the deed, though for never so short a period. All we have then from which we can find that a...