Curry v. Colburn

Decision Date12 April 1898
Citation74 N.W. 778,99 Wis. 319
PartiesCURRY v. COLBURN ET AL.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Fond du Lac county; N. S. Gilson, Judge.

Ejectment by William A. Curry against G. A. Colburn and another. From a judgment for defendants, plaintiff appeals. Affirmed.W. H. Webster, for appellant.

Greene & Vroman, for respondents.

BARDEEN, J.

The plaintiff brings this action in ejectment to recover possession of a tract of land in the city of Marinette. The answer is a general denial, and a counterclaim substantially to the effect that both parties claim title from one Fairchild, and that the deed under which plaintiff claims title was never in fact delivered to him with intent to pass title. A reply asserts the validity of plaintiff's deed, and that defendants took title with notice of the plaintiff's rights. The chief question litigated on the trial was whether the deed from Fairchild to plaintiff had ever been delivered. The court found that such deed was handed by Fairchild to plaintiff merely for examination and inspection, and was not delivered with the intention of passing the title. As conclusions of law, the court found that defendants were entitled to judgment dismissing the complaint and canceling said deed. There is ample evidence to support the conclusions arrived at by the trial judge, and his findings of fact cannot be disturbed. The deed in question was not dated or acknowledged. It was simply handed to plaintiff by Fairchild, at the former's request, to be taken to his lawyer for examination, and the parties were to meet later to complete the bargain. No particular form is necessary to constitute the delivery of a deed. It is sufficient when the deed is executed, and the minds of the parties to it meet, expressly or tacitly, in the purpose to give it present effect. Bogie v. Bogie, 35 Wis. 659. Like every other contract, there must be a meeting of the minds of the contracting parties--the one to sell and convey, and the other to purchase and receive--before the agreement is consummated. Welch v. Sackett, 12 Wis. 243. The question of delivery is largely of intention. 1 Devl. Deeds, § 262. And a deed never becomes operative until it is delivered with the intent that it shall become effective as a conveyance. Id. Counsel for the plaintiff argue earnestly that, because the deed was handed by Fairchild to the plaintiff, this constituted a full and complete delivery, and that evidence was not admissible to show the actual condition then existing. No doubt, a great deal of discussion and unnecessary refinement may be found in the books, bearing upon this question; but the...

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25 cases
  • Matter of Lemanski
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Western District of Wisconsin
    • February 6, 1986
    ...... See Curry v. Colburn, 99 Wis. 319, 320, 74 N.W. 778 (1898); Bogie v. Bogie, 35 Wis. 659, 667 (1874). . 56 BR 987          To constitute a valid ......
  • Butts v. Richards
    • United States
    • United States State Supreme Court of Wisconsin
    • February 26, 1913
    ...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. 6......
  • Estate of Read v. Kronberg, 2013AP2416.
    • United States
    • Court of Appeals of Wisconsin
    • February 19, 2015
    ...transfer title unless it is “delivered” to a grantee with the intent that it convey title to the deeded property. See Curry v. Colburn, 99 Wis. 319, 320, 74 N.W. 778 (1898) (“The question of delivery is largely of intention, ... [a]nd a deed never becomes operative until it is delivered wit......
  • Wanta v. Potrykus
    • United States
    • United States State Supreme Court of Wisconsin
    • January 12, 1932
    ...of the grantor. 18 C. J. 210, note 35, p. 211; Chaudoir v. Witt, 170 Wis. 556, 170 N. W. 932, 174 N. W. 925;Curry v. Colburn, 99 Wis. 319, 321, 74 N. W. 778, 67 Am. St. Rep. 860;Flannigan v. Goggins, 71 Wis. 28, 36 N. W. 846;Wheeler v. Single, 62 Wis. 380, 22 N. W. 569. No such delivery is ......
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