Dieckman v. Jaeger

• Decision Date: 13 February 1918
• Parties: DIECKMAN v. JAEGER.
• Court: Oregon Supreme Court

170 P. 727

87 Or. 392

DIECKMAN v. JAEGER.

Supreme Court of Oregon

February 13, 1918

Department 2.

Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge.

Action by Emilie Dieckman against Gust Jaeger. From a judgment for plaintiff, defendant appeals. Judgment affirmed.

This is an action of ejectment. In October, 1909, Henry Carl Dieckman executed a deed conveying to Emilie Dieckman a tract of 160 acres of land in Clackamas county, Or., and on December 10th of the same year deposited it with J. W. Thornton & Son with the following note:

"December 10, 1909.

"J W. Thornton & Son, Wilsonville, Or.--Gentlemen: In case of my death you will please deliver the attached deed, from myself to Emilie Dieckman, to Emilie Dieckman, deed conveying 160 acres of sections thirteen and fourteen in township three, south of range one west, Clackamas county Oregon, dated March 27th, 1909.

"[Signed] Henry Karl Dieckman."

Thereafter he conveyed to other parties a portion of said land, but not the 40 acres involved in this action. Henry Carl Dieckman died on the 28th day of March, 1912, and the plaintiff and two other sisters are his heirs at law. The defendant, Gust Jaeger, was appointed administrator of Dieckman's estate and took possession of the property in dispute as the property of deceased, whereupon the plaintiff brought this action. There were findings and a judgment for plaintiff, and defendant appeals.

Grant B. Dimick, of Oregon City (Dimick & Dimick and W. L. Mulvey all of Oregon City, on the brief), for appellant. Martin L. Pipes, of Portland (John M. Pipes and George A. Pipes, both of Portland, on the brief), for respondent.

McBRIDE C.J. (after stating the facts as above).

This appeal presents the single question, namely, whether the findings of the circuit court are sufficient to sustain the judgment, and this again narrows down to a construction of the written instructions which accompanied the deposit of the deed with Thornton & Son. The evidence upon which the circuit court based its decision cannot be considered here, and we must assume that it was sufficient to justify the findings. These are to the effect that Dieckman executed the deed deposited it with Thornton & Son without any other or different instruction than these recited in the writing above quoted, and that he subsequently conveyed a portion of the property to other persons.

It is settled in this jurisdiction that:

"If the grantor parts with all dominion and control over the deed, reserving no right to recall it or alter its provisions, it is a good delivery, and the grantee will, upon the death of the grantor, succeed to the title." Hoffmire v. Martin, 29 Or. 240, 45 P. 754.

In that case the declaration of the grantor at the time of the delivery of the deed to the depositary was as follows:

"I want you to take this, and after I am gone I want you to have it recorded and turn over to the boy"--meaning the grantee.

This court said:

"It is clear that the delivery of the deed was absolute and unconditional, the grantor never having possession of it thereafter, and we think it manifest from his declaration at the time, as well as from all the surrounding circumstances, that he intended by such delivery to divest himself of all power and dominion over the deed, and that it was no longer subject to his control."

Counsel for appellant attempts to distinguish between the language used by the grantor in the Hoffmire Case and that employed by the grantor here. In the case cited the grantor directed that the deed be delivered "after my death," and in the case at bar the direction was to deliver it "in case of my death." As here used, we think the expressions are practically identical. The phrase "in case of my death," as here used, is vitally different from the phrase "in case of death," so often used with reference to beneficiaries in wills and similar documents. As where a devise contains the words, "I give to A. my property, and in case of his death the same to go to B." In such cases it has been held, in the absence of special circumstances indicating a contrary intention, that the true purpose of the phrase was, not to create a remainder in B upon the death of A., but that if A. were living at the time of the testator's death he...