Butts v. Richards

• Decision Date: 26 February 1913
• Citation: 152 Wis. 318,140 N.W. 1
• Parties: BUTTS ET AL. v. RICHARDS ET AL.
• Court: Wisconsin Supreme Court

152 Wis. 318

140 N.W. 1

BUTTS ET AL.

v.RICHARDS ET AL.

Supreme Court of Wisconsin.

Feb. 18, 1913.

Dissenting Opinion, Feb. 26, 1913.

Appeal from Circuit Court, Richland County; Geo. Clementson, Judge.

Action by George Butts and others against Lucy Richards and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Kerwin, Siebecker, and Timlin, JJ., dissenting.Lincoln & Brindley, of Richland Center, for appellants.

Burnham & Black, of Richland Center, for respondents.

BARNES, J.

Henry Butts died intestate in August, 1908, leaving a widow, two children, and several grandchildren, as his heirs at law. Prior to August 4, 1905, he owned a farm of 74 acres in Richland county. On such date he executed a warranty deed of this farm to his wife Elizabeth. It does not appear that such deed ever came into the possession of the wife until about 10 days after Butts' death. It was then found by his son in a box in which Mr. Butts kept his money and valuable papers. This box was kept locked, and Butts carried the key on his person. During his last illness, he gave the key occasionally to a grandchild, who was living with him, for the purpose of getting money from the box for household expenses. It does not appear that he ever gave the key to his wife for any purpose. After his death, the box was found locked, and the key was found in the clothing of the deceased. Gertrude Warren testified to a conversation with the widow of Henry Butts shortly after his death, in which Mrs. Butts stated that her husband had made no will, but had made a deed to her; that the deed was not placed on record, because the husband did not want to record it; that her husband never gave her the deed, but kept it locked up in a drawer; and that she was unable to find the key. Phillip Warren gave substantially the same evidence. The evidence further showed that the box in which the deed was kept was customarily referred to as decedent's box, both by himself and his wife. Francis Stace, the attorney who drew Mrs. Butts' will, testified that she told him she owned a farm in Wisconsin, which her husband had given her a deed of, and which she wished to dispose of by will. He testified further: “I think she stated that she had a deed some three years before her husband died.” A very general objection was made to the competency of this evidence. Lucy Richards, a daughter, testified that her father told her at one time that the property was in the name of himself and wife. Elizabeth Butts disposed of the farm by will, and the contest arises between the heirs at law of Henry Butts and the devisees under the will of his widow. The circuit court found that there had been no delivery of the deed, and that the property should be distributed according to the laws relating to the estates of intestates. The legatees under the will, or at least some of them, appeal.

[1] The only question in the case is whether the finding of the circuit judge that there was no delivery of the deed is against the clear preponderance of the testimony. If the inference of nondelivery may be fairly drawn from the evidence, the judgment must be affirmed. Delivery is largely a question of intention. Curry v. Colburn, 99 Wis. 320, 74 N. W. 778, 67 Am. St. Rep. 860;Zoerb v. Paetz, 137 Wis. 59, 117 N. W. 793. It may be accomplished by words without acts. Bogie v. Bogie, 35 Wis. 659, 666. Conversely, it may also be accomplished by acts without words. Cerney v. Pawlot, 66 Wis. 262, 28 N. W. 183;Bates v. Winters, 138 Wis. 673, 120 N. W. 498. But the grantor must part with his dominion and control over the deed, with intention to pass title. Curry v. Colburn, supra; Prutsman v. Baker, 30 Wis. 644, 11 Am. Rep. 592. There are authorities which hold that, when it is shown that a deed has been properly executed, a presumption of delivery arises. Jones on Evidence, § 44. Delivery may also be implied from circumstances. 21 Cyc. 1290, and cases cited.

[2] The presumption of intention to deliver, that might arise from the execution of a deed, is overcome by showing that the grantor had the deed in his possession and under his control at the time of his death. Shetler v. Stewart, 133 Iowa, 320, 107 N. W. 310;Fisher v. Hall, 41 N. Y. 416.

The inherent weakness in the case for the appellant is that there is nothing in the testimony tending to show that Butts ever uttered a word or performed an act which evinced an intention on his part to vest the title to his property in his wife prior to his death, except to make a deed which he carefully locked up in his strong box, the key of which he carried about his person. He guarded it as closely as he did his pocketbook. When any money was wanted from this, he apparently did not permit his wife to get it, but had his grandchild bring it to him so that he could take out what money he saw fit. After his death, his widow was unable to find the key. During her lifetime she apparently never told any one that the deed had been delivered to her, or that her husband had said anything to her evincing an intention to make a delivery during his lifetime. Conceding that the testimony of the attorney should be considered, it proves very little. He thought Mrs. Butts told him that her husband deeded the property to her. She might well have made this statement, because she knew that her husband had in fact executed a deed, although there had been neither delivery nor intention to deliver. She was not learned in the law, and might be wholly ignorant of the fact that delivery was necessary to convey title. In any event, her statement was correct, if, by saying that her husband deeded her the property, she meant that he had executed a deed of it to her. The husband no doubt intended that his wife should have the property after his death, and told her that he had made a deed; but it was an entirely reasonable inference for the trial court to draw that Butts meant to keep the deed and the property under his control as long as he lived. The deed was executed about three years before Butts died. It conveyed all his real estate. A statement made by the wife, when told that the deed was no good unless given to her, throws some light on the subject. She said: “You know how it always was with Henry [meaning her husband], big I, little you, he never wanted me to have nothing.” The trial court, on the whole evidence, reached the conclusion that Butts supposed that a deed might be made to perform the functions of a will, and that he wanted to hold onto the farm as long as he lived, thinking that, after his death, the farm would go to the widow by virtue of the deed. Whether this be true or not, the inference is quite strong that Butts did not intend to place the title to his property in his wife during his lifetime. The case is quite similar in its facts to Reichert v. Wilhelm, 83 Iowa, 510, 50 N. W. 19, in which it was held that there was no delivery. Other analogous cases are Roup v. Roup, 136 Mich. 385, 99 N. W. 389;Bisard v. Sparks, 133 Mich. 587, 95 N. W. 728;Anderson v. Anderson, 126 Ind. 62, 24 N. E. 1036;Walls v. Ritter, 180 Ill. 616, 54 N. E. 565;Hayes v. Boylan, 141 Ill. 400, 30 N. E. 1041, 33 Am. St. Rep. 326;Noble v. Fickes, 230 Ill. 594, 603, 82 N. E. 950, 13 L. R. A. (N. S.) 1203, 12 Ann. Cas. 282;Oswald v. Caldwell, 225 Ill. 224, 231, 80 N. E. 131.

If it should be held that a lesser degree of proof of delivery is required between husband and wife than in other cases, we would still be unable to say that the findings of the circuit judge were against the clear preponderance of the evidence.

Judgment affirmed.

KERWIN, J. (dissenting).

The deed in question was duly made, signed, and sealed in 1905, and placed in a bureau drawer in the house occupied as the home of the husband and wife, grantor and grantee. This drawer was kept locked, and the key carried by the grantor, husband. The grantor died intestate in 1908, leaving the deed in the drawer. After his death, it was taken therefrom by the grantee and recorded. The property covered by the deed was the homestead. The grantee died in 1910. The only question involved is whether the deed was delivered to the grantee. Where a deed is found in the possession of the grantee after death of the grantor, there is a presumption of delivery. Jones on Evidence, § 44; Devlin on Deeds (3d Ed.) vol. 1, §§ 261, 262, 269; Dale v. Lincoln, 62 Ill. 22;Pitts v. Sheriff, 108 Mo. 110, 18 S. W. 1071;Wall et al. v. Wall, 30 Miss. 91, 64 Am. Dec. 147;Stevens v. Hatch et al., 6 Minn. 64 (Gil. 19). The fact that a deed is found in the possession of a grantor does not always rebut the presumption of delivery, if such possession is consistent with delivery. Bunnell v. Bunnell, 111 Ky. 566, 64 S. W. 420, 23 Ky. Law Rep. 800;Davis v. Davis, 92 Iowa, 147, 60 N. W. 507;Brown et al. v. Brown, 61 Tex. 56;Reed v. Smith et al., 125 Cal. 491, 58 Pac. 139.

While it is true that there must be a delivery in all cases to make a valid deed, a manual passing of the deed to the grantee is not always necessary. There may be a valid delivery, by words or acts of the grantor, with intent to deliver, though there be no manual passing of the deed to the grantee. Le Saulnier v. Loew et al., 53 Wis. 207, 10 N. W. 145;Zoerb v. Paetz et al., 137 Wis. 59, 117 N. W. 793;Bates et al. v. Winter, 138 Wis. 673, 120 N. W. 498;Klabunde v. Casper, 139 Wis. 491, 121 N. W. 137;Austin v. Austin et al., 105 Wis. 680, 81 N. W. 1012;Chase v. Woodruff, 133 Wis. 555, 113 N. W. 973, 126 Am. St. Rep. 972;Bogie v. Bogie, 35 Wis. 659. In Bogie v. Bogie, supra, it is said: “As a deed may be delivered to a party without words, so may a deed be delivered by words without any act of delivery.” In Curry v. Colburn, 99 Wis. 320, 74 N. W. 778, 67 Am. St. Rep. 860, this court said: “The question of delivery is largely of intention.” In 21 Cyc. 1290, it is said: “The deed from the husband to the wife should be executed, acknowledged, and recorded in accordance with the local...