Argued
February 7, 1894
Appeal, No. 180, July T., 1893, by plaintiffs, Thomas
Cummings and Clara C. Barrington, from judgment of C.P
Delaware Co., June T., 1891, No. 149, on verdict for
defendant, Elizabeth M. Glass. Affirmed.
Ejectment
for undivided two fifths of property, known as "Sea
Drift," at Linwood. Before CLAYTON, P.J.
On the
trial, it appeared that plaintiffs claimed as residuary
devisees of A. Boyd Cummings, deceased; and defendant claimed
under a deed from Cummings to Alexander F. Glass, her
deceased husband. Cummings was a bachelor and lived with the
Glass family, first at a hotel kept by Glass, and afterwards
in private houses. Glass died in 1881, and Mr. Cummings
continued to reside with Mrs. Glass and her family until his
death in 1891. The deed under which defendant claimed was
unrecorded. Mr. Cummings purchased the premises in question
in 1864, and the family of Glass, accompanied by Mr
Cummings, made it their summer home. The evidence of delivery
of the deed is given in the opinion of the Supreme Court.
Kate
Ubil, a witness for the defendant, testified, under
objection, that Mrs. Glass was always at the head of the
household at Linwood, and that the household expenses there
were paid by Mrs. Glass and Mrs. Buehler, all of them
together. [2]
Mary
Cummings, defendant's witness, testified, under objection
and exception, that Mr. Cummings said to her that he would
live with Mrs. Glass and her family as long as he lived, to
do whatever he could for them. [5]
William
H. Priest, defendant's witness, testified, under
objection and exception, that in 1867 or 1868 part of the
property was put in grain by him for Mr. Glass on shares. [6]
Defendant
under objection and exception, gave in evidence
Cummings's check books, showing payment of board to Mrs.
Glass and interest on a $5,000 note. [1]
Evidence
was also given by defendant, under objection and exception,
that $5,000 worth of bonds registered in the name of
Alexander F. Glass were found among Cummings's papers
after his death. [9]
The
court charged in part as follows:
"The
case now about being submitted to you is by no means a clear
one. The evidence is somewhat conflicting, and not entirely
satisfactory. Whatever difficulties you may encounter you
will have to overcome as best you can, but the case is to be
decided according to the weight of the evidence. It is not to
be decided by guess work or by any sympathy you may have in
the cause. You are to decide it by the evidence.
"It
appears that Mr. Cummings at one time, many years ago,
purchased this Linwood property. For some reason he did not
record his deed, and about two years after the purchase he
made a deed for it regular in form to Mr. Glass, and the
single question around which all the testimony in the case
and all the evidence that has been offered must center is:
Was that deed ever delivered? The deed, I say, was regular in
form, written upon parchment, signed and sealed; but however
regular a deed may be in form, in law it is not a deed until
it is delivered; whenever it is delivered the title passes,
and the destruction of the deed after that will not revest
the title. The fact that a deed that has been once delivered
comes back to the possession of the grantor, will not
reconvey the title to the grantor; it must be by deed, by
will, or by descent that it comes back.
"The
only two persons that could explain the mysteries surrounding
this deed to your satisfaction are dead; perhaps, a few words
from Mr. Cummings or from Mr. Glass would make all the
difficulty perfectly clear. Their mouths are sealed; they
cannot speak; but Mr. Cummings has left a deed behind him,
which does speak; and if it ever was delivered, the language
is unmistakable; it conveys the title as therein described. I
suppose you will certainly conclude that when that deed was
made it explains just what was intended to be explained; it
could not have been made for the mere pleasure of writing it
and preserving it; it was made for a purpose. [If you are
satisfied that Mr. Cummings knew of the existence of the
deed, you would be safe in arriving at the conclusion that he
had some object in preserving it; an object in making it and
an object in preserving it. What that object was does not
clearly appear.]
"Now,
gentlemen, as I stated, a moment ago, the whole question, the
important question, the question around which all this
testimony centers is, was this deed ever delivered?
"The
delivery of a deed means either handing it to the grantee,
recording it, or leaving it with some person for him, or
leaving it where he can get it. To sign, seal and execute a
deed and throw it upon a table where the grantee can pick it
up is a delivery. There is no particular form of delivery.
The deed must pass from the control of the man who makes it
and be in such a position as to be in the control of the man
to whom it is made, and that is a delivery.
"The
plaintiff here claims as residuary legatee under the will of
Mr. Cummings. The defendant claims this property under this
disputed deed. If, gentlemen, you come to the conclusion,
giving due weight to all the testimony, that Mr. Cummings,
during the lifetime of Mr. Glass, either gave that deed to
him or gave it to somebody for him, then the mere fact that
the deed afterwards came back into his possession would not
be sufficient to revest the title. [If you come to the
conclusion that there was some condition connected with the
delivery of this deed, and that it was never delivered to Mr.
Glass personally, but that it was delivered to his daughter,
Mrs. Buehler, as an escrow, still, if that condition was
complied with, the title would pass. We don't know what
the condition was. It might have been that it was not to be
delivered until after his death; it may be that it was never
to be delivered. We don't know.] But as I said a moment
ago, the deed itself is strong evidence in the cause. [The
great question will be, was the deed delivered during the
lifetime of Mr. Glass, as testified to by Miss Ubil,] [and if
you should come to the conclusion that it was not properly
delivered then, then the next great question will be, did Mr.
Cummings, when he came to die, knowing that that deed was in
existence, did he put it in that fire-proof with the
intention well defined of absolutely parting with its
custody, of never taking it himself again, and of placing it
there so that Mrs. Glass could get it, with the intention
that she should get it and with the intention that it should
pass title to her.] [That is the second question. If you
should come to the conclusion that he did, that he put it in
that fire-proof in her house with the intention that she
should find it, knowing that she had the key, and that she
should take possession of it, that would be a sufficient
delivery.]" [15]
Plaintiffs'
points were among others as follows:
"2.
Payment of the consideration money in a deed of bargain and
sale is necessary to transfer the use and to render the deed
operative. The burden of showing payment of the consideration
is, in this case, on the defendant, and she has offered no
evidence to show that the consideration was ever paid.
Answer: I cannot affirm that point, gentlemen, as written.
The receipt of the deed is some evidence, not conclusive, but
some evidence. The evidence, however, of the payment of this
consideration is very meager and very unsatisfactory; but if
the deed was delivered, that makes no difference. The title
would pass without the payment of the consideration. If the
deed was delivered with the receipt for the consideration
money upon it, the consideration would have to be recovered
in another form of action, but the title would pass. I
therefore, say, if the deed was delivered, I decline to
affirm this point. If the deed never was delivered the point
as presented is affirmed." [16]
"5.
Under the evidence in this case a gift of the land in
question to be effectual must be shown to have been executed
in the lifetime of both A. Boyd Cummings and Alexander F.
Glass by the delivery of the deed. Answer: I decline to so
charge you. I charge you that a delivery to his devisee after
Mr. Glass's death with an intention to pass the title
would be good, and would pass the title to Mrs. Glass, if Mr.
Cummings so intended when he delivered it." [17]
"9.
Even if the jury find that the fire-proof at 910 Pine street
was used in common by Mr. Cummings and Mrs. Glass, the mere
placing of the deed therein by Mr. Cummings would not amount
to a delivery of the deed; if the safe was used by Mr
Cummings for his own property at all, no presumption that he
intended to give any property to Mrs. Glass could possibly
arise from his merely placing it there, just as no
presumption could arise that Mrs. Glass intended to give to
Mr. Cummings a jewel, a bond, or a roll of money if she had
happened to leave such an article in the safe. Answer: Well,
gentlemen, this point is rather argumentative; if Mrs. Glass
had put a roll of money, a piece of jewelry, or any other
piece of her property in an envelope and indorsed it 'for
Mr. Cummings' and put it in the fire-proof, where they
both had access, it would be some evidence that she intended
to give it to him; that it was his; so, if a deed was put in
this fire-proof in her name or her husband's name, her
devisor's name, it might be some evidence of an intention
that she would get it; it certainly is some evidence -- it
would not be conclusive evidence; I affirm, therefore, this
point, unless you find from all the evidence an intention on
the part of Mr. Cummings to deliver the deed by that act; if
you find his purpose in placing this deed in the...
