Grilley v. Atkins

• Decision Date: 15 December 1905
• Citation: 78 Conn. 380,62 A. 337
• Parties: GRILLEY v. ATKINS.
• Court: Connecticut Supreme Court

62 A. 337

78 Conn. 380

GRILLEY

v. ATKINS.

Supreme Court of Errors of Connecticut.

Dec. 15, 1905.

Appeal from Superior Court, New Haven County; George W. Wheeler, Judge.

Suit by William F. Grilley against Homer L. Atkins for the cancellation of a deed. From a decree in favor of complainant, defendant appeals. Affirmed.

Edward F. Cole, for appellant Charles G. Root, for appellee.

TORRANCE, C. J. The plaintiff and the defendant are half-brothers, sons of the same mother, Eunice A. Atkins. She died in September, 1899, aged 86 years. The dispute between the brothers relates to the ownership of land lying in the town of Waterbury, and described in the first paragraph of the complaint. The plaintiff claims the land under a deed from his mother made in April, 1898, hereinafter for brevity called "deed A," while the defendant claims it, or a portion of it, under a deed from her made in June, 1899, hereinafter called "deed B." The controlling facts in the case are in substance as follows:

On April 14, 1898, Mrs. Atkins, accompanied by the plaintiff, went to the office of Wilson H. Pierce, Esq., a practicing attorney in Waterbury, and Mrs. Atkins then requested him to draw a deed, to be executed by her, conveying to the plaintiff, subject to her life use, a certain piece of land situated in Waterbury, with a dwelling house thereon, described in the first paragraph of the complaint. Pierce drew said deed, and the same was then and there duly executed by Mrs. Alkins; and thereupon, at her request and by her direction, he placed said deed in an envelope and sealed it up. The deed in said envelope was then delivered to Pierce by Mrs. Atkins, with instruction to keep and hold the same as an escrow, and to deliver the same upon her death to the plaintiff; and at the request of Mrs. Atkins Pierce then and there wrote the following words upon said envelope: "I hereby place the within deed as an escrow in the hands of Wilson H. Pierce, my attorney, to deliver the said deed upon my death to my son William F. Grilley of Waterbury, or his heirs, to be recorded." Mrs. Atkins then placed her name and seal on said envelope under said words, as follows: "Eunice Atkins. [L. S.]"—and Pierce then wrote upon said envelope: "April 14, 1898. Deed in my hands as an escrow, to be delivered to William F. Grilley, of Waterbury, upon the death of Eunice A. Atkins. W. H. P." Pierce had never before this time, and never thereafter, acted as the attorney of Mrs. Atkins. All that Pierce did for Mrs. Atkins on this occasion was to draw the deed and take the acknowledgment, make the indorsement upon the envelope, and place the same in his safe. At the time of the delivery of said deed to Pierce there was no intent upon the part of Mrs. Atkins to keep control of said deed, and she never in fact kept or retained control of the same. The delivery to Pierce was made by Mrs. Atkins with the Intention that it should be a delivery in escrow. Said deed was left with Pierce with the knowledge and consent of the plaintiff. On or about February 20, 1899, Mrs. Atkins went to Pierce's office and demanded of him said deed left by her with him April 14, 1898, but he refused to give it to her upon the ground that he had no legal right to do so without the consent of the grantee therein. On June 29, 1899, Mrs. Atkins, accompanied by the defendant, went to an attorney in Waterbury, who drew up a deed which was duly executed by Mrs. Atkins and which purported to convey to the defendant certain lands, including the house and a portion of the lot described in paragraph 1 of the complaint. Neither of said deeds was given upon a valuable consideration.

Mrs. Atkins died at Wolcott early in the morning of September 29, 1899. In the forenoon of said day the plaintiff and defendant were at the home of the defendant where Mrs. Atkins lay dead, and the defendant pretended to the plaintiff that he was going to Bristol, leaving the plaintiff to come to Waterbury to make some arrangements for the funeral. The plaintiff came to Waterbury, and, after making some arrangements for the funeral, went to the office of Pierce about 3:30 p. m. on said day, demanded and received from him the deed left in escrow, and took the same to the office of the town clerk of the town of Waterbury, where he left it to be recorded at 3:30 p. m., and the same was duly recorded. Instead of going to Bristol, the defendant on said day came to Waterbury and left at the town clerk's office for record said deed of June 29th, at 3:15 p. m. The defendant, before June 29, 1899, knew of the existence of said deed left in escrow, and knew that it was to be delivered to the plaintiff upon the death of Mrs. Atkins. The plaintiff had no knowledge of the defendant's deed of June 29th until after said September 29th. When Pierce delivered said deed left in escrow to the plaintiff, he wrote on the envelope containing the deed: "Received the within deed this 29th day of September, 1899, 3:30 p. m."

Upon these facts the trial court set aside deed B, and ordered the defendant to execute and deliver to the plaintiff a release deed of the land described in deed A; and this appeal is based upon alleged errors made by the court in so doing.

Where a deed is placed in the hands of a depositary for conditional future delivery to the grantee, a distinction has by some courts been recognized between cases where the future delivery depends upon the performance of some condition, and those where it depends upon the death of the grantor. In the former case the deed does not become operative until rightfully delivered by the depositary to the grantee, while in the latter, upon delivery to the depositary, it is deemed to be the grantor's deed presently, taking effect for many, if not for most purposes, from the time of its delivery to the depositary. The deed in either of these cases is usually called an "escrow," but perhaps more frequently and more properly that word is used to designate the deed in the former, rather than in the latter, case. In Foster v. Mansfield, 3 Metc. (Mass.) 412, 37 Am. Dec. 154, Chief Justice Shaw states the distinction in this way: "Where the future delivery is made to depend on the payment of money, or the performance of some other condition, it will be deemed an escrow. Where it is merely to wait the lapse of time, or the happening of some contingency, and not the performance of a condition, it will be deemed the grantee's deed presently. Still it will not take effect as a deed until the second delivery; but when thus delivered it will take effect by relation from the first delivery." This distinction between a deed placed in the hands of a depositary to be "delivered" by him upon the performance of some condition, and a deed "delivered" to the depositary to be by him handed over to the grantee at the death of the grantor, is recognized quite generally throughout the United States (2 Amer. & Eng. Ency. of Law, 342; 16 Cyc. 566, and cases there cited); but the courts are not agreed either as to the complete effect to be given to the "delivery" to the depositary, or as to the time when the title passes to the grantee. Some courts seem to hold that for many purposes the deed becomes operative and title passes when the deed is delivered to the depositary; others, that it does not become operative till the death of the grantor, and then by relation takes effect from the "delivery" to the depositary; while still others seem to hold that the "delivery" to the depositary conveys title immediately...