Cassidy v. Holland

• Decision Date: 29 March 1911
• Citation: 130 N.W. 771,27 S.D. 287
• Parties: THOMAS CASSIDY, Plaintiff and appellant, v. MARY HOLLAND, Defendant and respondent.
• Court: South Dakota Supreme Court

27 S.D. 287, 130 N.W. 771 (1911)

THOMAS CASSIDY,

Plaintiff and appellant,

v. MARY HOLLAND,

Defendant and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Brookings County, SD

Hon. George H. Marquis, Judge

Affirmed

I. P. Alexander

Attorney for appellants.

Cuckow & Quinn, Hall, Roddle & Purdy

Attorneys for respondent.

Opinion filed March 29, 1911

McCOY, J.

This was an action to quiet title to an undivided one-third interest in and to certain town lots situated in Elkton, Brookings county. Originally the lots in question were the property of one Mary Cassidy, who died intestate, in January, 1902. On the distribution of her estate, on July 18, 1904, an undivided one-third of said lots was assigned to her husband, John Cassidy.

The plaintiffs claim title to said lots as the heirs at law of said John Cassidy, who died intestate in October, 1907. The defendant claims title to said lots adversely to plaintiffs under a quitclaim deed dated May 18, 1904, executed by John Cassidy as grantor, to the defendant as grantee. On the trial of the case the plaintiff, in avoidance of the claim of defendant, offered in evidence a deed to said lots dated July 18, 1904, executed and signed by defendant and her husband as grantors to John Cassidy as grantee. To the introduction in evidence of this deed, which was marked "Exhibit 4," the defendant objected on the ground that the same was never delivered by the defendant and her husband to John Cassidy, and that it never was the intention of the defendant and her husband, or of the said John Cassidy, that the said instrument should be delivered to the said John Cassidy, therein named as the grantee, as a conveyance of the real property therein mentioned, or at all; and that the said instrument was only given and executed for the purpose of facilitating the proceedings of the county court in the matter of the estate of Mary Cassidy, deceased, in setting aside the homestead of John Cassidy; that the said instrument was never recorded and was kept from the record by the direction of the grantee therein named; that said instrument, as shown by the written order, "Exhibit 1," belonged to the defendant and her husband, and that they were entitled to the possession thereof; that said John Cassidy never had the same in his possession, actually or constructively, except the same having been handed to him in the office of the county judge more or less for inspection; that he showed by his conduct and his direction that the instrument should not be recorded, that there was no delivery thereof, and no intention to deliver the same to operate as a conveyance of the property, and that the said deed was never delivered to any agent of the grantee, nor was the possession thereof ever permitted to be in the presence of others than the grantors named, except for the purpose of removing a supposed obstacle for the county judge to set aside the homestead of John Cassidy. This objection was sustained by the court, to which the plaintiff duly excepted, and plaintiff now urges this ruling of the court as error. The vital question now before this court is whether or not the testimony is sufficient to show a delivery of said deed by the grantors to the grantee with the intention that the same should operate as a conveyance of title.

This deed, "Exhibit 4," was never recorded, and at the time of the commencement and trial of this action was in the actual possession of the defendant Mary Holland, one of the grantors named therein. Prior to the trial the court, upon the application of plaintiffs, had required defendant to produce said deed on the trial. The only witness who testified concerning the facts and circumstances surrounding the delivery of said deed was John P. Alexander, attorney for appellants, who was called as a witness on behalf of plaintiff, and who, on direct examination, testified:

"I am attorney for plaintiffs and live at Elkton, S.D. I am the same John P. Alexander whose name is attached to the notarial certificate on Exhibit 4. I saw Exhibit 4 signed by Mary Holland, who is defendant in this case, and John F. Holland, her husband, at or about the date Exhibit 4 bears. After the execution of Exhibit 4, it was delivered to me by John Cassidy, grantee, and was by me held until about the 23d day of January, 1907."

Exhibit 4 was then offered in evidence.

Defendant's counsel was then, before making objection to the introduction of said instrument, permitted to cross-examine the witness relative to the delivery of said deed, and who on cross-examination further testified:

"This deed was delivered to me about the time of the execution, at least on the day of the execution. The circumstances, as I remember them, were that the defendant and her husband and John Cassidy were in my office in Elkton on the day the deed was drawn up by me, and that was the same day on which the hearing took place in the county court upon the final distribution of the estate of Mary Cassidy; that this deed was then taken by me to Brookings and presented to the judge of the county court, and afterwards passed back into the hands of John Cassidy there, who handed it to me with directions to keep it until further orders. After the deed was executed, it lay on the table. I put on the notarial seal and certificate, and put it into my pocket. I kept it in my possession until we came to the county court for the purpose of proceeding upon the final distribution of the estate the same day. The deed was not delivered to John Cassidy by the grantors, unless his direction to me to keep it would be a delivery. I saw the deed in John Cassidy's hands in the office of the clerk of the court. My impression is it was handed to him by the county judge. It was submitted to the county judge at the time of making the final order setting over the property to John Cassidy as a homestead. It seems that the deed (Exhibit 3) from John Cassidy to the defendant, dated May 18, 1904, had been called to the attention of the county judge, and he suggested that he could not set over this property as a homestead to Cassidy on account of this deed (Exhibit 3) being of record, and at that time I produced this deed (Exhibit 4) and my recollection is that, when the matter had been considered, the county judge passed it over to John Cassidy, and he handed it to me. He directed me not to have it recorded. I...