Gonzaga University v. Masini

• Decision Date: 29 June 1926
• Citation: 42 Idaho 660,249 P. 93
• Parties: GONZAGA UNIVERSITY, a Corporation, Respondent, v. LULU MASINI, and LULU MASINI, as Executrix of the Estate of CAESAR MASINI, Deceased, Appellants
• Court: Idaho Supreme Court

249 P. 93

42 Idaho 660

GONZAGA UNIVERSITY, a Corporation, Respondent, v. LULU MASINI, and LULU MASINI, as Executrix of the Estate of CAESAR MASINI, Deceased, Appellants

Supreme Court of Idaho

June 29, 1926

DEEDS-NO EFFECTIVE DELIVERY.

There was no placing of deed beyond grantor's dominion and control, essential for effective delivery, without which title cannot pass, where deed, of which grantee had no knowledge, reciting that it should have no effect and should not be recorded till after grantor's death, was left by grantor in scrivener's possession with request to hold it and at time of grantor's death or serious sickness to cause it to be recorded.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Herman H. Taylor, Judge.

Action to recover real property and the rents, issues and profits thereof. Judgment for plaintiff. Reversed.

Judgment reversed; no costs awarded. Petition for rehearing denied.

James F. Ailshie and James F. Ailshie, Jr., for Appellants.

A purported deed which states on its face, "this is given and of no effect until after my death and is not to be recorded until after my death," and which is left in the hands of the draftsman and not delivered to the grantee, is not a deed but simply testamentary in character and passes no title. (Moody v. McComber, 159 Mich. 657, 134 Am St. 755, 124 N.W. 549; Goodale v. Evans, 263 Md 219, 172 S.W. 370; Williams v. Kidd, 170 Cal. 631, Ann. Cas. 1916E, 703, 151 P. 1; Rice v. Carey, 170 Cal. 748, 151 P. 135; Johnson v. Cameron, 136 N.C. 243, 48 S.E. 640.)

A deed of gift stating on its face, "this is given and of no effect until after my death and is not to be recorded until after my death," and left with the draftsman to be held by him and recorded after the death of the maker, is not delivered and never becomes a conveyance of real property. (Pickens v. Merriam, 274 F. 1; 8 R. C. L., sec. 45, p. 973; Alexander on Wills, sec. 56, p. 63; Hayden v. Collins, 1 Cal.App. 259, 81 P. 1120; Walter v. Way, 170 Ill. 96, 48 N.E. 421; Johnson v. Johnson, 24 R. I. 571, 54 A. 378; Schlicher v. Keeler, 67 N.J. Eq. 635, 61 A. 434; Provart v. Harriss, 150 Ill. 40, 36 N.E. 958; 6 R. C. L., p. 852, sec. 241.)

A deed of gift inter vivos not actually delivered to the donee and where possession is retained by the donor passes no title, interest or right to the donee. (Hoig v. Adrian College, 83 Ill. 267; 12 R. C. L., p. 932, par. 10, p. 934, par. 11, and p. 937, sec. 14; Bruce v. Squires, 68 Kan. 199, 74 P. 1102; Wright v. Bragg, 106 F. 25, 45 C. C. A. 204.)

Lynn W. Culp and Ferris & Ferris for Respondent.

Real test of the delivery of a deed is this: Did the grantor, by his acts or words, or both, intend to divest himself of title? If so, the deed is delivered. (Flynn v. Flynn, 17 Idaho 147, 104 P. 1030; Bowers v. Cottrell, 15 Idaho 221, 96 P. 936; Doty v. Barker, 78 Kan. 636, 97 P. 964; Creveling v. Banta, 138 Iowa 47, 115 N.W. 598; Kneeland v. Cowperthwaite, 138 Iowa 193, 115 N.W. 1026; Showalter v. Spangle, 93 Wash. 326, 160 P. 1042; Martin v. Flaharty, 13 Mont. 96, 40 Am. St. 415, 32 P. 287, 19 L. R. A. 242.)

Where an instrument is intended as a deed it is the settled policy of the law to make the instrument operative and effective and to carry out the wishes of the maker. (Broom's Maxims, 540; Ann. Cas. 1916D, 994, 11 A. L. R. 10; Young v. O'Donnell, 129 Wash. 219, 224 P. 682.)

Acceptance of grantee will be presumed. (Deisch v. Moore, 97 Ark. 262, 133 S.W. 1035; Burkey v. Burkey, (Mo.), 175 S.W. 623; 3 Washburn Real Property, 5th ed., p. 305; 1 Devlin on Deeds, sec. 262; Woodward v. Camp, 22 Conn. 457.)

WILLIAM A. LEE, C. J. Budge, J., and Heitman, D. J., concur, Wm. E. Lee, J., concurs in the conclusion. Givens, J., dissents. Taylor, J., did not sit at the hearing nor participate in the decision.

OPINION

WILLIAM A. LEE, C. J.

--This action was commenced by plaintiff, Gonzaga University, a corporation, organized as an educational institution under the laws of the state of Washington, with its principal place of business at Spokane, in said state. It succeeded to all the rights, title, property interests and franchises of Gonzaga College, also a corporation of the same place, in May, 1912. The action is against Lulu Masini, individually, and as the executrix of the estate of Caesar Masini, deceased, for the purpose of having the court decree that plaintiff is the owner and entitled to the immediate possession of the west half of lot nine, block "N," town of Coeur D'Alene, Kootenai county, Idaho, that neither of defendants have any right, title or interest in or to said property, or the right of possession thereof; that it recover rents, issues and profits arising out of appellants' possession of said property received by them since April 12, 1909, with interest; that defendants be required to render an account of the same and for general equitable relief. The complaint, inter alia, alleges that on April 12, 1909, Henry Higgins, being the owner of said property and desiring to make a gift of the same to Gonzaga College, executed and delivered a warranty deed, conveying title to said premises to Gonzaga College, it being a corporation and the predecessor in interest of plaintiff; that subsequent to the execution and delivery of the deed and before the same had been filed of record in the recorder's office, Caesar Masini, now deceased, and whose estate is being probated by the said Lulu Masini, without the knowledge, consent or permission of the grantor, or grantee, about November 28, 1909, fraudulently, wrongfully, illegally, secretly, and without any right so to do, obtained possession of the deed and erased therefrom the name of Gonzaga College, and secretly, illegally, fraudulently and wrongfully substituted and wrote into said deed his own name as grantee; that on November 29, 1919, this deed, with said alteration, was, by one James Russell, placed of record in the office of the recorder of Kootenai county, all of which things were done without the knowledge, approval or consent of the said Henry Higgins, or of plaintiff or its predecessor in interest; that on November 29, 1909, said grantor died in the city of Coeur D'Alene, without having any knowledge that Caesar Masini had secured possession of this deed, or had made these changes; that on the death of said grantor, and after the filing of the deed for record, Caesar Masini went into possession of said real property assuming to be the owner, and remained in possession until his death September 14, 1922, and during all of that time received, kept and appropriated to his own use, the rents and profits of said property; that at the time of his death, defendant Lulu Masini, as executrix of the estate of Caesar Masini, and as devisee under his will, obtained possession of this property and has since retained possession and appropriated and is continuing to appropriate the rents, issues and profits thereof to her own use, claiming to be the owner; that neither plaintiff nor Gonzaga College had any knowledge of these facts until about June 1, 1923; that Caesar Masini wrongfully and intentionally concealed said facts from plaintiff, and its predecessor Gonzaga College; that on August 16, 1923, and within the time provided by law for filing claims, plaintiff filed and served defendant Lulu Masini, executrix, with its claim for said property and the rents, issues and profits thereof. A copy of this claim is set forth in the complaint and shows the total of the rents and profits during this period to be $ 18,774, with a credit for taxes paid, and interest thereon, of $ 3,924, leaving a net balance claimed by plaintiff of $ 14,850, and also a demand for the recovery of title to said premises alleged to be of the value of $ 8,000. This claim was presented in due form and was rejected by defendant executrix.

It is further alleged that plaintiff has been the owner of this real property since April 12, 1909, and entitled to the possession thereof and of the rents, issues and profits; that defendant Lulu Masini, neither as executrix nor individually, has any right, title or interest in or to said property.

Defendants appellants here, demurred to this complaint on numerous grounds, the principal ones being that the complaint failed to state facts sufficient to constitute a cause of action against appellant as administratrix, executrix or individually; that the action was barred by C. S., secs. 7581, 7586, 7587, 6596, 6597, 6598 and 6617; that neither respondent nor its predecessor in interest had authority to maintain this action or a right to hold title to real property in this state; that the complaint was uncertain in particulars enumerated. The demurrer was overruled and appellants answered the complaint, denying that appellant was executrix of Caesar Masini's estate and alleged that she was the administratrix of said estate. The answer then denies, seriatim, substantially all of the material allegations of the complaint, some positively and others upon information and belief. As an affirmative defense, appellant alleged that respondent was a foreign corporation and had never complied with the constitution and laws of Idaho with reference to foreign corporations, and that neither it nor its predecessor in interest, Gonzaga College, had any legal capacity or right, under the constitution and laws of this state, to take or hold real property, or to take or hold gifts, bequests or devises of real property; that for fourteen years immediately preceding the commencement of this action, appellant, as administratrix, and her predecessor, the deceased Caesar Masini, were continuously the owners of said property and in the uninterrupted, open and notorious occupancy of the same, and...