Hoffmire v. Martin

• Citation: 45 P. 754,29 Or. 240
• Parties: HOFFMIRE et al. v. MARTIN. [1]
• Decision Date: 27 July 1896
• Court: Supreme Court of Oregon

45 P. 754

29 Or. 240

HOFFMIRE et al. v. MARTIN. ^[1]

Supreme Court of Oregon

July 27, 1896

Appeal from circuit court, Marion county; George H. Burnett, Judge.

Action by Dora A. Hoffmire and others against James S. Martin. Decree for plaintiffs, and defendant appeals. Reversed.

Tilmon Ford and W.M. Kaiser, for appellant.

W.Y Masters and W.H. Holmes, for respondents.

BEAN J.

This is a suit by the plaintiffs to declare null and void a deed made by their deceased father, John M. Martin, in April, 1893, to the defendant, on the ground of nondelivery. John M. Martin died of consumption in July, 1893, leaving four daughters (the plaintiffs herein) and one minor son (the defendant) as his heirs at law. For a long time prior to his death he was ill and infirm, and fully realized that he could not recover. In August, 1892, having in view the equal division of his property among all his children, he executed deeds to them severally, but retained the same in his possession and under his control. Subsequently changing his mind, and desiring that the property should go to his minor son, he destroyed the former deeds, and on April 11, 1893, sent for a justice of the peace, and requested him to prepare a deed conveying the land to the defendant; saying that he "wanted Jimmy [[meaning the defendant] to have this piece of land." A short time after the deed was executed, the grantor handed it to his brother, S.S. Martin who testifies that he (the grantor) "got it [the deed] out and handed it to me, and says, 'I want you to take this, and after I am gone I want you to have it recorded and turn it over to the boy,' meaning the defendant." He afterwards told the plaintiffs and others that he had deeded the land to the defendant, and intended him to have it. The testimony of S.S. Martin is all the evidence in the record as to what occurred at the time of the delivery to him, but some of the plaintiffs testify that after the deed had been executed their father told them that he still had it in his possession, and intended to keep it until his death. But these statements were probably made during the interval between its execution and delivery to S.S. Martin, for 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 is manifest from his declarations 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.

Upon these facts the only question to be determined is whether there was a sufficient delivery of the deed by the grantor to pass the title to the grantee. The question as to when a deed executed and deposited with a stranger, to be delivered to the grantee upon the death of the grantor, is effectual to pass title, has been the subject of much judicial controversy; but it is now substantially agreed that its solution depends on whether the grantor intends to and does retain dominion and control over it after such delivery, or parts with the possession and control of it absolutely at the time of the delivery. In the former case, by the great weight of authority,--although the decisions are not entirely harmonious,--there is no sufficient delivery, and the deed passes nothing. 1 Devl. Deeds, § 282; Stinson v Anderson, 96 Ill. 373; Prutsman v. Baker, 30 Wis. 644; Brown v. Brown, 66 Me. 316; Cook v Brown, 34 N.H. 460; Williams v. Schatz, 42 Ohio St. 47; Provart v. Harris, 150 Ill. 40, 36 N.E. 958; Davis v. Ellis, 39 W.Va. 226, 19 S.E. 399. But 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, on the death of the grantor, succeed to the title. It was so held in Foster v. Mansfield, 3 Metc. (Mass.) 412 where a grantor executed a deed and delivered it to the scrivener, to be...