Hutton v. Cramer

• Decision Date: 30 March 1906
• Docket Number: Civil 932
• Parties: PETER L. HUTTON, as Administrator of the Estate of A. T. Epley, Deceased, Plaintiff and Appellant, v. JOHN CRAMER, Defendant and Appellee
• Court: Arizona Supreme Court

85 P. 483

10 Ariz. 110

PETER L. HUTTON, as Administrator of the Estate of A. T. Epley, Deceased, Plaintiff and Appellant, v. JOHN CRAMER, Defendant and Appellee

Civil No. 932

Supreme Court of Arizona

March 30, 1906

APPEAL from a judgment of the District Court of the Fifth Judicial District in and for the County of Gila. Eugene A. Tucker Judge. Affirmed.

The facts are stated in the opinion.

George R. Hill, and G. W. Shute, for Appellant.

With regard to conversations and transactions between appellee and A. T. Epley, the deceased, appellee's testimony (upon which he relied for his proof) is not entitled to a high degree of credit as the other party to the transaction is dead. Rev. Stats. Ariz. 1901, par. 2536; Page v Burnstine, 102 U.S. 668, 26 L.Ed. 270; Stuart v. Lord 138 Cal. 672, 72 P. 143.

There was, without reference to the so-called "notice," no sufficient delivery of the deed at the time. Porter v Wood-house, 59 Conn. 568, 21 Am. St. Rep. 131, 22 A. 299, 13 L.R.A. 64; Prutsman v. Baker, 30 Wis. 644, 11 Am. Rep. 592; Younge v. Guilbeau, 70 U.S. (3 Wall.) 636, 18 L.Ed. 262; Cook v. Brown, 34 N.H. 476; Jackson v. Leek, 12 Wend. 105; Fay v. Richardson, 7 Pick. 91; Alsop v. Sawthel, 7 Conn. 503; Hoboken City Bank v. Phelps, 34 Conn. 103; 2 Kent's Com. 439; Bouvier Law Dic., "Delivery"; Lawn v. Donovan, 2 Kan. App. 404, 42 P. 744; Stone v. French, 37 Kan. 145, 1 Am. St. Rep. 237, 14 P. 530; Wilson v. Wilson, 158 Ill. 567, 49 Am. St. Rep. 176, 41 N.E. 1007; Burton v. Boyd, 7 Kan. 17. The cases of Stout v. Stout, 28 Ind.App. 502, 63 N.E. 250; Fifer v. Rachels, 27 Ind.App. 654, 62 N.E. 68; and Hays v. Boylan, 141 Ill. 400, 33 Am. St. Rep. 326, 30 N.E. 1041, are on all fours with the case at bar, and should govern.

The "notice" must control as to the intention of Epley, as to the time of delivery, as it is the authority for the delivery of the deed. Bury v. Young, 98 Cal. 446, 35 Am. St. Rep. 186, 33 P. 338; Keyes v. Meyers, 147 Cal. 702, 82 P. 304; Wilson v. Wilson, 158 Ill. 567, 49 Am. St. Rep. 176, 41 N.E. 1007, and cases cited. Appellee cannot claim the deed and repudiate the "notice." The two are inseparable. They were executed at the same time, relate to the same parties and subject-matter, and refer to each other, and must be construed together. 17 Am. & Eng. Ency. of Law, 2d ed., pp. 9, 10. To constitute a delivery, there must be a present intention to divest and convey the property, coupled with a parting of control over the deed. 9 Ency. of Law, 2d ed., 154; Porter v. Woodhouse, 59 Conn. 568, 21 Am. St. Rep. 131, 22 A. 299, 13 L.R.A. 64; Provart v. Harris, 150 Ill. 40, 36 N.E. 959; Wilson v. Wilson, 158 Ill. 567, 49 Am. St. Rep. 176, 41 N.E. 1007. Such a deed would be ambulatory and void. Devlin on Deeds, p. 854.

A. C. Baker, for Appellee.

Such deed was valid and conveyed a title in proesenti with the use or enjoyment of the premises postponed until the death of the grantor. See, Owen v. Williams, 114 Ind. 179, 15 N.E. 678; White v. Hopkins, 80 Ga. 154, 4 S.E. 863; Graves v. Atwood, 52 Conn. 512, 52 Am. Rep. 610; Bunch v. Nicks, 50 Ark. 367, 7 S.W. 563; Wyman v. Brown, 50 Me. 139; Abbott v. Holway, 72 Me. 298; Shackleton v. Sebree, 86 Ill. 616; Webster v. Webster, 33 N.H. 18, 66 Am. Dec. 705; Cribbs v. Walker, 74 Ark. 104, 85 S.W. 244; Wilson v. Carrico, 140 Ind. 533, 49 Am. St. Rep. 213, 40 N.E. 50; Prutsman v. Baker, 30 Wis. 650, 11 Am. Rep. 592; Cook v. Brown, 34 N.H. 460; Bury v. Young, 98 Cal. 446, 35 Am. St. Rep. 186, 33 P. 338. Epley, by his subsequent conduct revoked the clause in the "notice" postponing the use and enjoyment of the premises until after his death, by putting Cramer into the actual possession of the mine, and it is clear that Epley had the power to do this. Ruiz v. Dow, 113 Cal. 490, 45 P. 867; 1 Devlin on Deeds, par. 283, and note. The tendency of the modern and better reasoned cases is to follow the manifest intent of the maker and uphold the conveyance as a deed if not repugnant to some well-defined rule of law. 1 Devlin on Deeds, sec. 855; Love v. Blauw, 61 Kan. 496, 78 Am. St. Rep. 334, 48 L.R.A. 257, 59 P. 1059. The deed was delivered during the lifetime of the grantor with the intention to pass present title. Whether or not delivery of a deed has taken place is mainly a question of fact. 1 Devlin on Deeds, sec. 262; Hibbard v. Smith, 67 Cal. 554, 56 Am. Rep. 726, 4 P. 473, 8 P. 46; Chastek v. Souba, 93 Minn. 418, 101 N.W. 618. No particular form or ceremony is necessary or essential to effect the valid delivery of a deed. The essential feature is that the intention of the grantor that the deed shall at once become operative to pass title to the land conveyed be clearly manifested and that the grantor loses all control over it. The question is one largely of the intent of the grantor as manifested by his acts and declarations, and by the circumstances attending the execution of the deed, and his subsequent conduct toward the same. 9 Am. & Eng. Ency. of Law, p. 154; 1 Devlin on Deeds, sec. 261, 262; Shults v. Shults, 159 Ill. 654, 50 Am. St. Rep. 188, 43 N.E. 800; Martin v. Flaherty, 13 Mont. 96, 40 Am. St. Rep. 415, 19 L.R.A. 242, 32 P. 287; Brown v. Westerfield, 47 Neb. 399, 66 N.W. 439, 53 Am. St. Rep. 532, and notes. The mode of fulfilling the intention of the grantor is not so important as his intent. Hastings v. Vaughn, 5 Cal. 315; Hubbard v. Cox, 76 Tex. 239, 13 S.W. 170; Kenniff v. Caulfield, 140 Cal. 34, 73 P. 803. The fact that the deed was placed where it was equally accessible to both grantor and grantee, does not make it any the less a good and sufficient delivery. Kenniff v. Caulfield, 140 Cal. 34, 73 P. 803; Newton v. Bealer, 41 Iowa 334; Munro v. Bowles, 187 Ill. 346, 58 N.E. 331, 54 L.R.A. 855; Sneathern v. Sneathern, 104 Mo. 201, 24 Am. St. Rep. 326, 16 S.W. 497. Appellee had knowledge of the existence of the deed, and it being beneficial to him, his acceptance thereof will be presumed. Moore v. Flynn, 135 Ill. 74-80, 25 N.E. 844. "If the grantor when executing the deed intends it as a delivery and the parties treat the estate as having actually passed thereby, it will have the effect of a delivery though the instrument be left in the possession of the bargainor." Bunnell v. Bunnell, 111 Ky. 566, 64 S.W. 420, 65 S.W. 607; Washburn on Real Property, 261; Cecil v. Beaver, 28 Iowa 241, 4 Am. Rep. 174; Tobin v. Bass, 85 Mo. 654, 55 Am. Rep. 392; Gould v. Day, 94 U.S. 405, 24 L.Ed. 232.

OPINION

SLOAN, J.

-- Appellant, Peter L. Hutton, as administrator of the estate of A. T. Epley, deceased, brought suit in the district court of Gila County against John J. Cramer, appellee, to quiet the title to the Gem mining claim situate in the Globe mining district of said county. The case was heard by the court without a jury, and a judgment entered for the appellee quieting the latter's title to said mine in accordance with the prayer of his cross-complaint. From this judgment the appeal is taken.

The facts, as disclosed by the record, are these: In 1903 A. T. Epley was the owner of the Gem mining claim. Being a man of advanced years and somewhat feeble, he proposed to Cramer if the latter would agree to take care of him during his lifetime, to so arrange his affairs that Cramer should have the Gem mine and his other property upon his death. This Cramer agreed to do. In November, 1903, Epley met Cramer in the town of Globe, and said to him: "Mr. Cramer, I have the papers made out, and I would like to go and deposit these papers in your box in the First National Bank." Cramer then accompanied Epley to the bank and introduced him to the cashier, and asked the latter to hand him his private bank box. Upon receiving the box Cramer and Epley withdrew to a private room, whereupon Epley placed in the box an envelope with Cramer's name written thereon, and remarked at the time to Cramer: "This contains what I am going to give you after I am dead; keep that here until I am dead." The box was then closed and returned to the cashier. Before leaving the bank Cramer requested the cashier to put Epley's name on the box with his own name and to give Epley access to it at any time he might desire. The box was not thereafter opened until after Epley's death, which occurred in 1904. After this transaction at the bank Cramer assumed control of the property with the knowledge of Epley and did or caused to be done the assessment work on the claim. After Epley's death Cramer opened the box at the bank and took out the envelope placed therein by Epley, and found therein a deed made out to him by Epley of the Gem mining claim which he at once placed of record. He also found with the deed, inclosed in the envelope, a paper which read as follows: "Notice. To all whom it may concern: I, A. T. Epley, of the town of Globe, county of Gila, territory of Arizona, on this 7th day of November, A.D. 1903, have made two deeds of conveyance of all my real estate, of which I am possessed, as also a bill of sale of all my personal property of which I am possessed, to John J. Cramer of Globe, Gila County, territory of Arizona, and have placed the said instruments so made into my private box in First National Bank, Globe, Arizona, to be had and held there by seal for delivery to said John J. Cramer, immediately upon my death, with the understanding that the valuable consideration by said John J. Cramer, so as aforesaid therefor is: (1) That he will cause upon my said death a respectful and honorable burial; (2) that said John J. Cramer has for times past extended every possible kindness to me; (3) that the said John J. Cramer has for many years been and is an old-time friend; that, for the aforesaid considerations, I have thus conveyed to him, said John J. Cramer, all my real and personal property; and ask that the same...