Flynn v. Flynn

• Decision Date: 02 November 1909
• Citation: 104 P. 1030,17 Idaho 147
• Parties: TERRENCE FLYNN et al., Respondents, v. THOMAS FLYNN et al., Appellants
• Court: Idaho Supreme Court

104 P. 1030

17 Idaho 147

TERRENCE FLYNN et al., Respondents, v. THOMAS FLYNN et al., Appellants

Supreme Court of Idaho

November 2, 1909

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. W. W. Woods, Judge.

Action to set aside a deed conveying certain interests in mining claims. Judgment for plaintiff. Reversed.

Judgment of the lower court reversed with directions. Costs of this appeal awarded to the appellants.

John H Wourms, for Appellants.

"The real test of delivery is this: 'Did the grantor, by his acts or words, or both, intend to devest himself of title?' If so, the deed is delivered." (9 Am. & Eng Ency. of Law, 154; Doty v. Barker (Kan.), 97 P. 965; Creveling v. Banta, 138 Iowa 47, 115 N.W. 600; Kneeland v. Cowperthwaite, 138 Iowa 193, 115 N.W 1026.)

"Acts and declarations of the grantor and grantee which, in connection with surrounding circumstances, indicate that the parties intended to deliver the deed, and belief that they had done so, constitute a delivery." (Hildebrand v. Willig, 64 N.J. Eq. 249, 53 A. 1035.) "The delivery of a deed is complete when the grantor parts with all control and dominion over same, with the intention that the title shall pass to the grantee." (Biggins v. Lambert, 213 Ill. 625, 104 Am. St. 238, 73 N.E. 371.) "The rule that the grantor must part with all dominion and control over the deed does not mean that he must put it out of his physical power to procure possession of it." (Sneathen v. Sneathen, 104 Mo. 201, 24 Am. St. 326, 16 S.W. 497.)

"If a deed be handed to a third person under such circumstances as to evidence an intention to make a delivery thereof to the grantee named therein, it is immaterial whether there be express directions so to do or not." (Criswell v. Criswell, 138 Iowa 607, 116 N.W. 713; Gardiner v. Gardiner, 134 Mich. 90, 95 N.W. 973; Franklin Ins. Co. v. Feist, 31 Ind.App. 390, 68 N.E. 188; Diekman v. Arnold, 71 Mich. 656, 40 N.W. 42; Burk v. Sproat, 96 Mich. 404, 55 N.W. 985; Coulson v. Coulson, 180 Mo. 709, 79 S.W. 473; Martin v. Flaharty, 13 Mont. 98, 40 Am. St. 415, 32 P. 287, 19 L. R. A. 242; Standiford v. Standiford, 97 Mo. 231, 10 S.W. 836, 3 L. R. A. 299.)

The fact that the deed remained in the possession of Mr. Norris under the facts of this case until after the grantor's death would not in any manner affect the sufficiency of the delivery of the deed. (Berry v. Young, 98 Cal. 446, 35 Am. St. 186, 33 P. 338; Hutton v. Cramer, 10 Ariz. 110, 85 P. 483; White v. Watts, 118 Iowa 549, 92 N.W. 660; Munro v. Bowles, 187 Ill. 346, 58 N.E. 331, 54 L. R. A. 865; Griswold v. Griswold, 148 Ala. 239, 121 Am. St. 64, 42 So. 554.)

H. E. Worstell, for Respondents.

So long as there is left in the grantor of a deed power, at his discretion, to reclaim, recall, alter or cancel the instrument, it has not been delivered, nor put in a condition such that his failure to exercise this power will give to the acts done the character of a delivery. (Williams v. Schatz, 42 Ohio St. 47; Prutsman v. Baker, 30 Wis. 644, 11 Am. Rep. 592; Bettinger v. Van Alstyne, 29 N.Y.S. 904; Cook v. Brown, 34 N.H. 460; Baker v. Haskell, 47 N.H. 479, 93 Am. Dec. 455; Porter v. Woodhouse, 59 Conn. 568, 21 Am. St. 131, 22 A. 299, 13 L. R. A. 64; Hayes v. Boylan, 141 Ill. 400, 30 N.E. 1041, 33 Am. St. 326; Commercial Bank v. Reckless, 5 N.J. Eq. 430, 452; Schuffert v. Grote, 88 Mich. 650, 26 Am. St. 316, 50 N.W. 657; Fitzpatrick v. Brigman, 130 Ala. 450, 30 So. 500; Brown v. Brown, 66 Me. 316; Alsop v. Swathel, 7 Conn. 500; Duer v. James, 42 Md. 492.)

"The delivery of a deed is complete when the grantor or obligor has parted with his dominion over it, with the intent that it shall pass to the grantee or obligee, provided the latter assents to it, either by himself or his agent." (Greenleaf on Ev., sec. 297; 3 Washburn, 5th ed., "Real Property," pp. 300, 302; Beardsley v. Hilson, 94 Ga. 50, 20 S.E. 272; Moore v. Flynn, 135 Ill. 74, 25 N.E. 844; Rittmaster v. Brisbane, 19 Colo. 371, 35 P. 739; Reel v. Reel, 59 W.Va. 106, 52 S.E. 1023; Powell v. Banks, 146 Mo. 620, 48 S.W. 664; Stockwell v. Williams, 68 N.H. 75, 41 A. 973.)

In reviewing cases of this sort where there is at best involved little more than a proper conclusion from the evidence presented, the reviewing court will not lightly set aside the decision of the trial judge. (Spacy v. Ritter, 214 Ill. 266, 73 N.E. 447.) It is only where it is plainly shown that there is no substantial conflict in the evidence on the material issues, or the trial court has ignored the evidence entirely and rendered judgment without support from the evidence, that this court will interfere and order a new trial. (Robertson v. Moore, 10 Idaho 115, 77 P. 218; Abbott v. Reedy, 9 Idaho 577, 75 P. 764; Thompson v. Wise Boy etc. Co., 9 Idaho 363, 74 P. 958; Sabin v. Burk, 4 Idaho 28, 111, 179, 37 P. 352.)

SULLIVAN, C. J., AILSHIE, J. Stewart, Ailshie, JJ., and Sullivan, C. J., concurring.

OPINION

SULLIVAN, C. J.

This is an action brought by Terrence Flynn and others against Thomas Flynn and others, for the purpose of having a certain deed, executed by Charles Flynn in favor of Thomas and William P. Flynn, dated August 24, 1901, conveying to said grantees an undivided interest in seven mining claims situated in Lalande mining district, Shoshone county, Idaho, declared void.

This action was begun by the plaintiffs, who are respondents here, on May 31, 1906, alleging that the grantor was weakened in body and mind to such an extent as to unfit him for the transaction of business at the date of making said deed, and that on account of the weakened condition, the grantor was incompetent to transact any business and was absolutely under the influence and control of the grantee Thomas Flynn, and that the grantees in said deed had fraudulently conspired and planned to procure from the deceased, Charles Flynn, all of his property without paying a fair or adequate consideration therefor, and by divers fraudulent practices had procured from said deceased all of his property except that described in said deed. The value of the property conveyed by said deed is alleged to be $ 80,000. It is also alleged that the defendant Brady had entered into a contract for the purchase from said grantees of all of the interests conveyed to them by said deed.

The prayer of the complaint is to the effect that said deed be declared null and void and be canceled, and that said grantees be required to convey to the plaintiffs such interests in said mining claims as they may be entitled to receive, and that the grantees be directed to account to the plaintiffs for the rents and profits of said mining claims since August 26, 1901, and that an injunction issue to restrain the defendants from in any manner transferring or encumbering the title to said claims during the pendency of this action.

To this complaint were filed two answers, one by Thomas and William Flynn and one by Patrick Brady, each of which answers put in issue all of the material allegations of the complaint. Thereafter, on February 19, 1907, the plaintiffs filed an amended complaint setting up some additional facts but still basing the ground for relief on the mental weakness and incompetency of the grantor and the fraudulent practices of the grantees.

The defendants answered said amended complaint, denying both the incompetency of the grantor and the alleged fraudulent practices of the grantees. Thereafter on April 13, 1908, a second amended complaint was filed, alleging the incompetency of the grantor and the fraudulent practices of the grantees, and also the further fact that said deed had never been delivered to the grantees. To this second amended complaint the defendants filed their answers denying the alleged incompetency of the grantor and also denying that he executed said deed under duress or through any fraudulent practices of the grantees.

Upon this second amended complaint the cause was tried by the court. The court found that the grantor was of sound mind and capable of conducting business, and knew the force and effect of his act, and that he "signed and executed said deed of his own accord and volition," and that at the time said Charles Flynn signed and executed the said deed, he was not acting under duress or compulsion of the defendant Thomas Flynn or William P. Flynn or of any other person, and further found that said deed, at the date of the grantor's death, was in the custody of one Edwin L. Norris, Esq., and had never been delivered by the said Charles Flynn, grantor, to the defendants Thomas Flynn or William P. Flynn, the grantees, nor to either of them nor to anyone in their behalf.

Judgment was entered upon those findings in favor of the plaintiffs, adjudging and decreeing said deed of conveyance to be null and void and of no effect, and that the plaintiffs and the defendant Thomas Flynn are decreed and adjudged to be the true and lawful owners of the mining claims described in said deed, in equal proportions of one-fifth each.

A motion for a new trial was made and denied by the court and this appeal is from the judgment and the order denying a new trial.

The only question presented by the appeal is whether or not there was a delivery of said deed by the grantor. It is contended by counsel for the appellant that there was a delivery of the deed to the grantees, and that the court erred in finding that there was no delivery thereof. All of the evidence bearing upon the question of the delivery of the deed is contained in the record. The deed was prepared by Edwin L. Norris, Esq., who is one of the attorneys for the respondents. He also testified as a witness on behalf of the plaintiffs. He testified that he lived at Dillon, Montana and was...