Cell v. Drake

• Decision Date: 22 March 1940
• Docket Number: 6674
• Parties: JOHN F. CELL, Appellant, v. DANIEL DRAKE, JOHN DRAKE, SAMUEL DRAKE and SUSAN DRAKE FLAGLER, Respondents
• Court: Idaho Supreme Court

100 P.2d 949

61 Idaho 299

JOHN F. CELL, Appellant, v. DANIEL DRAKE, JOHN DRAKE, SAMUEL DRAKE and SUSAN DRAKE FLAGLER, Respondents

No. 6674

Supreme Court of Idaho

March 22, 1940

DEEDS-DELIVERY.

1. A deed may be executed and placed in the hands of a depositary or escrow holder for delivery to grantee after grantor's death, and constitutes a present passage of title with a reservation of life estate in grantor.

2. If grantor delivers deed to depositary or escrow holder for delivery to grantee after grantor's death, with intention to part with possession and control of the deed and still retain possession of the realty, grantor cannot later change legal aspect of transaction by recovering possession of the deed from the depositary, even though depositary returns the deed to grantor on demand.

3. Where all five justices were in substantial accord as to the law, and majority of three agreed that judgment should be reversed, but only two of such majority thought that reversal should be accompanied with instructions to enter judgment for appellants, while minority thought that judgment should be affirmed, judgment was reversed and remanded with instructions to hear further evidence on the fact questions in dispute, to make findings and to enter judgment accordingly.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles E. Winstead, Judge.

Suit to quiet title. Judgment for answering defendants. Judgment reversed and remanded with directions.

Reversed and remanded, with instructions.

Fisher & Coffin, for Appellant.

The delivery by the grantor of a deed duly executed and acknowledged to a depositary, accompanied with instructions and directions to deliver such deed to the grantee, upon the death of the grantor is a valid delivery. (Arnegaard v Arnegaard, 7 N.D. 475, 75 N.W. 797, 41 L. R. A. 258; Bury v. Young, 98 Cal. 446, 33 P. 338, 35 Am. St 186; Wittenbrock v. Cass, 110 Cal. 1, 42 P. 300; Grilley v. Atkins, 78 Conn. 380, 62 A. 337, 112 Am. St. 152, 4 L. R. A., N. S., 816; Baker v. Baker, 159 Ill. 394, 42 N.E. 867.)

Deed of land executed, acknowledged and delivered to third person to be by him delivered to the grantee therein named after grantor's death, when so delivered, takes effect as from the date of the first delivery, and divests the estate of the grantor as from that date. (Wilhoit v. Salmon, 146 Cal. 444, 80 P. 705; Bury v. Young, supra; Baker v. Baker, supra; Hudson v. Hudson, 287 Ill. 286, 122 N.E. 497, 503; Foreman v. Archer, 130 Iowa 49, 106 N.W. 372.)

A subsequent change of mind by the grantor cannot change the original nature and effect of the transaction. (Bury v. Young, supra; Wittenbrock v. Cass, supra; Baker v. Baker, supra; Hudson v. Hudson, supra.)

S. L. Tipton, for Respondents.

There must be a delivery of deed with intent to pass title to grantor or no title passes to the grantee. (Gonzaga University v. Masini, 42 Idaho 660, 249 P. 93; Kolber v. Steinhafel, 190 Wis. 468, 209 N.W. 595; Bank of America Trust & Savings Assn. v. Hoover, 3 Cal.App. (2d) 516, 39 P.2d 884; Hardin v. Russell, 175 Ark. 30, 298 S.W. 481; Kimbro v. Kimbro, 199 Cal. 344, 249 P. 180; Hayden v. Collins, 1 Cal.App. 259, 81 P. 1120.)

When the controversy is whether or not a deed has been delivered, evidence of acts, declarations and circumstances of the grantor during the time the deed was in escrow, are admissible. (Watt v. Copeland, 92 Cal.App. 161, 267 P. 928, 931; Moore v. Trott, 162 Cal. 268, 122 P. 462; Kolber v. Steinhafel, supra.)

GIVENS, J., AILSHIE, C. J., Justice Holden. BUDGE, J., Concurring in part and Dissenting in part. MORGAN, J., Dissenting.

OPINION

GIVENS, J.

Statements of the facts of the case appear in the opinions of Ailshie, C. J., and Morgan, J.

I concur with Morgan, J., as to the statute of limitations.

It seems to me the remaining and pivotal point in this case is whether there was an irrevocable delivery of the deed by the grantor during her lifetime either to the grantee or to someone else for his benefit, intending then to pass title, though reserving possession during her lifetime. (16 Am. Jur. 516-521.)

The complaint alleged the delivery of the deed by Mrs. Sandlin to appellant. It is further alleged appellant put and kept the deed in his secret box in the house where both were living and so far as he knew it remained there until surreptitiously removed. The court found: "That said deed was not during the lifetime of Clara S. Sandlin (grantor), delivered to appellant." The court had the right to believe Judge Dunbar and disbelieve appellant, and on such a premise the above finding is correct so far as it went. But if the point be correct that it is not only a question of whether irrevocable delivery had or had not been made to the grantee, but that the second contingency must also be determined, that is, whether there was irrevocable delivery to a third person for the grantee, the above finding is insufficient.

Appellant's cause of action was to quiet his title based on a deed. The testimony of Judge Dunbar was admitted without objection and aside from the testimony of appellant himself, is uncontradicted. If appellant's testimony was true the deed was delivered to him. If Judge Dunbar's testimony was true it was not delivered to appellant but to Judge Dunbar for appellant and there is evidence it was so delivered. If either event transpired and the grantor's intention was irrevocable, title passed to appellant.

The proof of delivery as made by the testimony of Judge Dunbar did not conform to the specific allegations of the complaint. Under similar situations this court has held that though there was no motion to amend the pleadings to conform to the proof, if no objection was made to the introduction of the particular evidence (and none was made herein), the complaint will be deemed amended. (Sarvis v. Childs Bond etc. Co., 49 Idaho 79, 87, 286 P. 914, citing and relying on Hayes v. Flesher, 34 Idaho 13, 17, 198 P. 678.)

The cause should be reversed and remanded for the learned trial court to hear further evidence if either party so desires and make a specific finding as to whether or not the deed was delivered irrevocably to Judge Dunbar for appellant. (Jensen v. Bumgarner, 25 Idaho 355, 137 P. 529; American Min. Co., Ltd., v. Trask, on rehearing, 28 Idaho 650, 156 P. 1136; Sarret v. Hunter, 32 Idaho 536, 185 P. 1072; Muckle v. Hill, 32 Idaho 661, 187 P. 943; Turner Agency v. Pemberton, 38 Idaho 235, 221 P. 133.)

AILSHIE, C. J.--To my mind, the test to be applied to this case is: Did the grantor reserve any right to recall the deed from the possession of the depositary? If she did, there was no delivery and the conveyance failed. If she did not reserve the right to reclaim it, the title passed, subject to grantor's life estate therein. This question cannot be answered by what she thereafter did in reclaiming the deed but it must rather be answered by ascertaining what she had a legal right to do. The testimony on this particular issue is as follows:

Judge Dunbar says:

"A . . . She had made a will, and in this will this man, Mr. Cell--by the terms of it he would have received this property on her death, and she came to me and told me she thought it would be more economical or better if she had a deed, and that was the theory on which that deed was made. . . .

"Yes, I went to her house. I had been requested to go. . . .

"Q. What did you do there?

"A. Well, I had prepared a deed for her, to Mr. Cell, and I took the deed over there, and she signed it and acknowledged it before me as a notary, . . . .

"Q. Did you give--turn the deed over to Mr. Cell?

"A. No, sir, I did not turn the deed over to Mr. Cell, but what happened was this, that when the deed was acknowledged, and signed, we called in Mr. Cell into the room, and told him about it, and I showed him the deed, and then Mrs. Sandlin said to me, 'Mr. Dunbar, I want you to take this deed and put it in your safe and keep it in your safe, and at any time after my death that Mr. Cell asks for it, why, give it to him.'" (Italics supplied.)

Now it seems clear, from the testimony of Judge Dunbar, who drew the deed and took the acknowledgment, that his instructions were: "Take this deed and put it in your safe, and keep it in your safe, and at any time after my death that Mr. Cell asks for it, why give it to him."

Judge Dunbar further says:

"I showed him the deed . . . . I explained to him that Mrs. Sandlin had made this deed and he understood then that it was to be delivered to him after her death."

It appears to me that the positive instruction given to Judge Dunbar, to keep the deed in his safe until after Mrs. Sandlin's death, and to deliver it to Cell after Mrs. Sandlin's death, precludes any intention, either express or implied, that Mrs. Sandlin reserved the right or privilege of recalling the deed at any time prior to her death; and of course she could not do so afterward. The instruction is plain and unambiguous.

Under a well recognized line of authorities in this country, a deed to real property may be executed and placed in the hands of a depositary or escrow holder for delivery to the grantee after the death of the grantor, and constitutes a present passage of title with a reservation of a life estate in the grantor. (Showalter v. Spangle, 93 Wash. 326, 160 P. 1042; Martin v. Flaharty, 13 Mont. 96, 32 P. 287, 40 Am. St. 415, 19 L. R. A. 242.)

The rule is well stated by the supreme court of Washington in the case first above cited, wherein it is said:

"When however, the grantor delivers the deed to a third person in escrow to be held until the grantor's death and then delivered to the grantee, the grantor retaining no dominion or control over it, the...