Johnson v. Johnson

• Citation: 54 A. 378,24 R.I. 571
• Parties: JOHNSON et al. v. JOHNSON.
• Decision Date: 05 January 1903
• Court: United States State Supreme Court of Rhode Island

54 A. 378

24 R.I. 571

JOHNSON et al.

v. JOHNSON.

Supreme Court of Rhode Island.

Jan. 5, 1903.

Bill by Peter Johnson and others against Mary A. Johnson to set aside a deed. Decree for complainants.

Argued before STINESS, C. J., and TILLIN GHAST and ROGERS, JJ.

Claude J. Farnsworth, for complainants.

Edward W. Blodgett, for respondent.

TILLINGHAST, J. The only question presented for our decision by the bill, answer, and proof in this case is whether the deed under which the respondent claims title to the real estate described in the bill was so deposited or left with the witness Charles P. Moies by the grantor during her lifetime as to constitute an absolute delivery thereof for the use and benefit of the grantee.

The material facts in the case are these: On May 9, 1899, Mary Johnson made and executed a quitclaim deed of the premises referred to to the respondent, Mary A. Johnson, and left it with said Charles P. Moies, with direction that in case anything happened to her (she meaning thereby, as Moies understood it, that in case she should die), he should then deliver the deed to her daughter, said Mary A. Johnson. He did not understand, however, from the instructions given him, that the grantor intended by said acts to place the deed beyond her control, but, on the contrary, he understood that she retained the right to recall the deed at any time, and also that she retained the right to sell and dispose of the property there afterwards if she saw fit. In short, the substance of Moies' understanding, from the instructions given him, was that the deed was left with him subject to the control of the grantor during her life, and that in case of her death, without having disposed of the property, he was to deliver the deed to the grantee named therein. The grantor continued to exercise dominion over said real estate up to the time of her death, which occurred on the 13th day of November, 1901. She advertised it for sale, and in other ways attempted to effect a sale thereof; she paid the taxes, collected the rents, and paid the interest on the mortgage thereon, and generally treated the estate as her absolute property. After her death said deed was delivered to the grantee by Moies, and by her caused to be recorded in the registry of deeds in Pawtucket. And the complainants now seek by this bill to have said deed set aside and declared void and of no effect, on the ground that no delivery thereof was ever effected by the grantor.

In view of the facts aforesaid, we are of the opinion that said deed was ineffectual to pass any title to the estate. In order to convey title to real estate, it is necessary that the deed thereof shall be delivered to the grantee or to some one for his use. And the ordinary test of delivery is: Did the grantor, by his acts or words, or both, intend to divest himself of the title to the estate described in the deed? If so, the deed is delivered. But if not, there is no delivery; and hence no title passes. See Am. & Eng. Ency. Law, vol. 9 (2d Ed.) 154-158; Brown v. Brown, 66 Me. 316. In order to constitute a delivery, the grantor must absolutely part with the possession and control of the instrument. Younge v. Guilbeau, 3 Wall. 636, 18 L. Ed. 262; Hawkes v. Pike, 105 Mass. 562, 7 Am. Rep. 554.

That a deed may be effectual to convey title, although delivered...