Carnahan v. Gupton

Decision Date03 November 1939
Docket Number7878.
PartiesCARNAHAN et al. v. GUPTON et al.
CourtMontana Supreme Court

Rehearing Denied Dec. 16, 1939.

Appeal from District Court, Sixteenth Judicial District; Fallon County: Rudolph Nelstead, Judge.

Action by Julia Carnahan and others against E. S. Gupton and Mary Gupton, husband and wife, and P. H. Dunn, as administrator of the estate of George S. Gupton, deceased, involving title to certain realty. From judgment for plaintiffs, the defendants appeal.


D. L O'Hern and P. F. Leonard, both of Miles City, for appellants.

D. R Young, of Baker, and George W. Farr, of Miles City, for respondents.

FRANK P. LEIPER, District Judge.

On October 29, 1935, George S. Gupton died intestate at Miles City, Custer County, Montana. He sometimes signed his name G S. Gupton, and was also known as Steve Gupton. James Clayton Gupton was a brother of George S. Gupton and resided at Gillette, Wyoming. E. S. Gupton is the son of James Clayton Gupton. Involved in this controversy are five sections of land situated within Fallon County, Montana. These lands were acquired by the two Gupton brothers about 1916, and thereafter each owned an undivided one-half interest therein.

On July 5, 1930, James Clayton Gupton and his wife conveyed to G. S Gupton all of their right, title, and interest in and to the lands involved herein. This transfer was accomplished by giving six separate deeds. The grantee therein recorded these six deeds and thus became and remained the record owner of the lands in question until the time of his death. At the same time, G. S. Gupton executed and delivered to James Clayton Gupton a deed conveying to the latter an undivided one-half interest in and to the lands in question. This deed was not recorded. James Clayton Gupton died August 29, 1930.

On February 8, 1932, G. S. Gupton made and executed five warranty deeds purporting to convey to E. S. Gupton and his wife all of the five sections of land in question. On the same date G. S. Gupton put these five deeds in a sealed envelope, addressed that envelope to the grantees named in the deeds, and placed the envelope in his safety deposit box in the Bank of Miles City, at Miles City, Montana. At the same time G. S. Gupton mailed a letter to E. S. Gupton, one of the grantees in the above-mentioned five deeds, which letter is as follows:

"Miles City Mont Feb. 8. 1932.

Mr. E. S. Gupton.

Gillette Wyo.

Dear Sir;

I have today placed in the Bank of Miles-City. At Miles City. Mont. in lock box Number 1210. a sealed Envelope Addressed to E. S. Gupton. Gillette Wyo. Deeds to Sec. 9. sec. 7. sec. 11. sec. 5. sec. 19. all in T. 9. N. R. 57. E. In fallon County Mont. made in your favor. and at my death and when notified of my death. present this letter to the Bank of Miles City at Miles City Mont and same will be delivered. to you.

Yours Truly.

GSG (s) G. S. Gupton"

That letter was received by E. S. Gupton. The envelope containing the five deeds remained in G. S. Gupton's safety deposit box until after his death. He alone had access to that safety deposit box. After the death of G. S. Gupton the deeds in question were turned over to E. S. Gupton by the administrator of G. S. Gupton's estate and placed of record by E. S. Gupton.

Other material facts will be mentioned in connection with the discussion of the points involved.

The cause was tried to the Court without a jury. The trial court made its findings in effect that G. S. Gupton did not intend that the five deeds in question "should take effect or be delivered to the defendant, E. S. Gupton, until after the death of the said George S. Gupton; but that the said George S. Gupton should be and remain the owner of an undivided one-half interest in said real estate so long as he lived, and that said deeds were retained by the said George S. Gupton in his possession and were not delivered to or intended to be delivered to the defendant, E. S. Gupton, or Mary Gupton, his wife, during the lifetime of the said George S. Gupton." The court further found that E. S. Gupton and Mary Gupton obtained possession of these deeds without right.

From such findings of fact the court drew its conclusions of law, in so far as material here, as follows: "That there was no delivery either actual or constructive of the five deeds from George S. Gupton to E. S. Gupton and Mary Gupton; ** and that said deeds were revoked and were rendered null and void by the death of the grantor, G. S. Gupton, prior to delivery, and are of no force and effect."

The five deeds thus referred to are the deeds executed by G. S. Gupton on February 8, 1932, and hereinbefore mentioned.

The court further found that the administrator of the estate of G. S. Gupton refused "to become a party-plaintiff in this action, and for that reason the plaintiffs herein, who are some of the heirs at law of George S. Gupton, deceased, are prosecuting said action for themselves and all other heirs at law of said deceased, and for the benefit of the estate of said deceased;".

Judgment was rendered and entered accordingly. This appeal is from that judgment.

While numerous errors are assigned, appellant's counsel concede that all of these may be considered together. Counsel for the respective parties seem to be in agreement that the decisive question here is whether the five deeds executed by G. S. Gupton as grantor on February 8, 1932, to E. S. Gupton and his wife as grantees, were delivered; or whether these deeds are ineffective because of non-delivery as held by the trial judge. The question is stated by counsel for respondents in another way, in substance, this: Did these five deeds vest any title to any of the lands in question in E. S. Gupton and Mary Gupton? All of the multitude of cases in which this question has been considered agree that there must be a delivery of a deed in order to vest title. Our Section 6843, R.C.M. 1935, provides: "A grant takes effect, so as to vest the interest intended to be transferred, only upon its delivery by the grantor."

Delivery may likewise be made by placing the deed in escrow, for Section 6846, R.C.M. 1935, provides: "A grant may be deposited by the grantor with a third person, to be delivered on performance of a condition, and, on delivery by the depositary, it will take effect. While in the possession of the third person, and subject to condition, it is called an escrow."

Actual manual delivery is not essential and constructive delivery is sufficient, for Section 6848, R.C.M. 1935, provides:

"Though a grant be not actually delivered into the possession of the grantee, it is yet to be deemed constructively delivered in the following cases:

1. Where the instrument is, by the agreement of the parties at the time of execution, understood to be delivered, and under such circumstances that the grantee is entitled to immediate delivery; or,

2. Where it is delivered to a stranger for the benefit of the grantee, and his assent is shown, or may be presumed."

It may be noted that Section 1059 of the Civil Code of California is identical with our Section 6848, supra, and because of the similarity in our statutes, the decisions of California are peculiarly applicable here.

While all of the authorities agree that delivery is a prerequisite to the vesting of title in the grantee, there is some divergence of opinion as to what constitutes delivery. After a careful consideration of all of the authorities cited by counsel, as well as of other authorities, we conclude that the better rule and that sustained by the great weight of authority, is as announced by this court in the case of Springhorn v. Springer et al., 75 Mont. 294, 243 P. 803, 804: "While delivery may be by either words or acts, or both combined, and actual, manual handing over of the deed to the grantee by the grantor is not required, it is settled that delivery is not complete until the grantor has so dealt with the instrument as a means of divesting his title as to lose all control over it and place it beyond the right of recall. It is required that the grantor shall unequivocally indicate it to be his intention that the instrument shall take effect as a conveyance of property in order to have it produce that result. Hibberd v. Smith, 67 Cal. 547, 4 P. 473, 8 P. 46, 56 Am.Rep. 726; Fain v. Smith, 14 Or. 82, 12 P. 365, 58 Am.Rep. 281."

A careful consideration of the undisputed facts here impel us to the conclusion that these fall far short of meeting those requirements. These facts disclose that after the execution of these deeds, the grantor placed them in an envelope which he sealed and addressed to the grantees. At the same time he wrote the letter hereinbefore quoted. On the same day, or about that time, he took this envelope, together with the letter, or a copy of it, to the Bank of Miles City, and there had a talk with a Mr. Flinn, an officer of that bank. Flinn read the letter and then said, in substance, to the grantor "Steve, if anything happens to you we have no authority to enter that box and deliver those papers to anyone else. What you should do is authorize someone else to have access to that box." To this Gupton replied: "That's all right. My nephew has a letter." The grantor then placed the envelope in his safety deposit box. No one had access to that box at that time, or at any other time during the lifetime of G. S. Gupton, except the grantor himself. The bank did not have access to it. In other words, that safety deposit box was under the absolute and exclusive control of the grantor, and that condition continued so long as the grantor remained alive. The deeds in question did not come into the possession of the grantees, or either of them, until after the grantor's death. From 1930 until...

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4 cases
  • Walsh v. Kennedy
    • United States
    • Montana Supreme Court
    • 25 d6 Março d6 1944
    ...after the grantor's death, the deed must have been made effectual during the grantor's lifetime. Secs. 6843, 6845, Rev.Codes, 1935; Carnahan v. Gupton, supra; Miller Talbott, supra. There can be no delivery by a dead hand. Munpower v. Castle, 128 Va. 1, 104 S.E. 706; Kenney v. Parks, 125 Ca......
  • Dean v. Sargent
    • United States
    • Iowa Supreme Court
    • 14 d2 Dezembro d2 1943
    ... ... 450, 30 So. 500, 501; ... Crawford v. Bertholf, 1 N.J.Eq., Saxt., 458, 467; Jones v ... Jones, 6 Conn. 111, 16 Am.Dec. 35; Carnahan v. Gupton, 109 ... Mont. 244, 96 P.2d 513; Cumnock-Reed Co. v. Lewis, 278 Ky ... 496, 128 S.W.2d 926. [234 Iowa 186] There is also authority, ... ...
  • Thompson v. Lincoln Nat. Life Ins. Co.
    • United States
    • Montana Supreme Court
    • 11 d5 Junho d5 1943
    ... ... ineffective. The dead man could not pay nor act on the ... notice. "A dead man is not capable of any ... activity." Carnahan v. Gupton, 109 Mont. 244, ... 258, 96 P.2d 513, 518 ...          On the ... same date, February 8, 1934, defendant wrote a second ... ...
  • Miller v. Talbott
    • United States
    • Montana Supreme Court
    • 24 d4 Junho d4 1943
    ... ... tradition. Hotaling v. Hotaling, [193 Cal. 368, 224 P. 455, ... 56 A.L.R. 734]." ...          The ... next case is Carnahan v. Gupton, 109 Mont. 244, 96 ... P.2d 513, 514. The facts as given in the opinion are that: ...          "On ... February 8, 1932, G. S ... ...

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