Griffith v. Sands

• Decision Date: 08 October 1928
• Docket Number: 12179.
• Citation: 84 Colo. 456,271 P. 191
• Parties: GRIFFITH v. SANDS et al.
• Court: Colorado Supreme Court

271 P. 191

84 Colo. 456

GRIFFITH v. SANDS et al.

No. 12179.

Supreme Court of Colorado

October 8, 1928

Error to District Court, Montrose County; Straud M. Logan, Judge.

Action by Ora Pearl Griffith against Lelia May Sands, as administratrix of the estate of John W. James, deceased, and others. Judgment for defendants, and plaintiff brings error.

Hugo Selig, of Montrose, for plaintiff in error.

Bryant & Bell, of Montrose, for defendants in error.

DENISON C.J.

A demurrer to the complaint was sustained, and judgment thereupon went for defendant. Plaintiff brings error. Both parties ask for a final decision on motion for supersedeas.

The complaint alleges that one James, plaintiff's father signed, sealed, and acknowledged a deed which purported to convey certain land to plaintiff, but died without actually delivering it to her. She concedes that a deed must be delivered to be valid, but contends that the one in question was constructively delivered because of the following facts alleged in the complaint:

'That shortly before his death, he, the said John W. James, did declare and make known that owing to the poor circumstances of plaintiff and his solicitude for her that said deed should be delivered to said Ora Pearl Griffith, plaintiff herein, upon his death and that the property granted and conveyed in said deed should be had and owned by her the said Ora Pearl Griffith and her heirs forever.'

She also argues that the facts above set forth created a trust in James and his heirs for her benefit.

The first question is whether directions by a grantor, in an instrument which he had signed, sealed, and acknowledged, to deliver the same after his death, amount to constructive delivery. We think not. Childers v. Baird, 59 Colo. 382, 148 P. 854. Indeed, the complaint shows that there was no delivery because the deed was to be delivered at grantor's death; there could not, then, have been a previous delivery. This is the everrecurring case of an attempt at once to give property and keep it, and as long as men keep on trying to do that lawyers will not starve. True, delivery has been said to be a matter of intent, but it is not a matter of intent alone. Some act by which the grantor parts with control of the instrument must accompany the intent (Riegel v. Riegel, 243 Ill. 626, 90 N.E 1108; Fisher v. Oliver, 174 Cal. 781, 164 P. 800; Brown v Brown, 66 Me. 316; Doss v. Doss, 77 Colo. 262, 236 P. 129; McGowan v. Lockwood, 65 Colo. 264, 269, 176 P. 298), but plaintiff's grantor retained the deed and might have withheld it indefinitely, or destroyed it, without liability. It is essential to delivery of a deed that the grantor part with control of it, which James did not do.

As to the claim of trust, the only...