Keefe v. Fitzgerald

• Citation: 69 N.D. 481,288 N.W. 213
• Decision Date: 24 October 1939
• Docket Number: No. 6622.,6622.
• Parties: KEEFE v. FITZGERALD et al.
• Court: United States State Supreme Court of North Dakota

69 N.D. 481

288 N.W. 213

KEEFE

v.FITZGERALD et al.

No. 6622.

Supreme Court of North Dakota.

Oct. 24, 1939.

Syllabus by the Court.

1. A deed is of no effect unless it is delivered.

2. Delivery of a deed may be accomplished by words, or acts, or both combined.

3. If a deed has once been delivered its return to the grantor for some specific purpose such as for safe keeping, does not destroy the effect of delivery.

4. If the grantor makes a manual delivery to the grantee of a deed absolute in form, intending to part with all authority and dominion over the instrument, the delivery is absolute and title passes immediately in accordance with the terms of the deed notwithstanding any intention or understanding that its operation be delayed until the happening of a contingency.

Appeal from District Court, Grand Forks County; P. G. Swenson, Judge.

Action by Edith M. Keefe against Michael Fitzgerald, as administrator of the estate of John J. Fitzgerald, and others to determine the ownership of a house and lot. From an adverse judgment, the plaintiff appeals.

Judgment reversed.

Ronald N. Davies and S. Theodore Rex, both of Grand Forks, for appellant.

C. F. Peterson, of Grand Forks, for respondents.

MORRIS, Judge.

This is an action to determine the ownership of a house and lot in the city of Grand Forks. John J. Fitzgerald died on September 17, 1938, and at the time of his death was the record title owner to the property involved in this law suit. He was a widower, his parents were dead, and he had no children. For several years prior to his death he had been keeping company with the plaintiff, Edith M. Keefe. He had a safety deposit box in a bank in Grand Forks. His brother, Michael Fitzgerald, who is now administrator of the estate, had access to this box and kept some of his own papers therein. Michael Fitzgerald noticed a sealed envelope in the box with the plaintiff's name written thereon. He testifies: “Then after the ------ the day after the funeral when she said everything was hers, why of course then I took her up to see what was in this letter, in the envelope, so she took it and tore it open, * * *.”

The contents of the envelope proved to be a warranty deed from John J. Fitzgerald to the plaintiff conveying the lot in Grand Forks. She took the deed with her but later at the request of the county judge, turned it over to the administrator of the estate of the deceased by whom it was produced in court. The plaintiff's mother testified that in the spring of 1933 the deceased visited at her home in Crookston, Minnesota. That on one occasion when she came into the living room her daughter and the deceased were looking at a paper and the daughter handed it to her mother, who examined it, recognized that it was a deed from the deceased to the plaintiff, and handed it back to the daughter. The daughter, in turn, handed it back to Mr. Fitzgerald and asked him to put it away for her. This was the same instrument that was later found in the safety deposit box. In response to a question on cross examination regarding what Fitzgerald said, the mother testified: “He told me he was going to give it to her; it was going to be hers.”

It was stipulated that John J. Fitzgerald paid the taxes on the property in question in 1932 and up to and including the first installment of the 1937 taxes; subsequent to the purported delivery of the deed, he took out three insurance policies on the property in question; he retained possession of the premises, occupied one room of the house, collected rent, and made repairs. These facts being stipulated, no question of admissibility of evidence with regard thereto is before us.

There is no question as to the execution of the deed. The only question presented is whether or not the deed was delivered so as to pass title to the plaintiff prior to the death of John J. Fitzgerald.

[1][2][3] The trial court found that there was no delivery of the deed and dismissed plaintiff's action to quiet title. The case is here for a trial de novo. A number of basic legal principles are applicable. A deed is of no effect unless it is delivered. Delivery of a deed may be by words or acts or both combined. An indispensible element to be considered in determining whether a deed has been delivered is the intention of the grantor. Arnegaard v. Arnegaard, 7 N.D. 475, 75 N.W. 797, 41 L.R.A. 258;O'Brien v. O'Brien, 19 N.D. 713, 125 N.W. 307;Magoffin v. Watros, 45 N.D. 406, 178 N.W. 134;McGuigan v. Heuer, 66 N.D. 710, 268 N.W. 679. Whether that intention is one which pertains to the manual tradition of the instrument or to the passage of title at the time of delivery is not wholly determined by the foregoing authorities. In fact, this question is one upon which there is a considerable confusion of authority. Before considering this question, however, we will determine what, if any, effect resulted from the fact that the grantee handed the deed back to the grantor with instructions to put it away for her.

[4] The fact that the deed was immediately returned to the grantor may be considered as a circumstance bearing upon whether or not there was a delivery. But if delivery actually took place the return of the deed to the grantor for some specific purpose such as for safe keeping did not destroy the effect of the legal delivery. Goodman v. Goodman, 212 Cal. 730, 300 P. 449;Upton v. Merriman, 116 Minn. 358, 133 N.W. 977, Ann.Cas.1913B, 491; 16 Am.Jur. 511; Devlin on Deeds, Third Edition, Sec. 278a.

“So, if a deed be duly delivered in the first instance, it will operate, though the grantee suffer it to remain in the custody of the grantor. If both parties be present, and the usual formalities of execution take place, and the contract is, to all appearance consummated, without any conditions or qualifications annexed, it is a complete and valid deed, notwithstanding it be left in the custody of the grantor.” Kent's Commentaries, Vol. 4, page 455.

We now come back to the question of whether there was a legal delivery in the first instance and the effect of the intention of the grantor. The only witness who testified as to manual delivery is Mrs. Duvall. She first saw the deed when she entered the family living room. Her daughter then had it in her hand. Presumably she had received it from the grantor, who was present. Whether it had been given to her as an immediate conveyance of title or only for examination with the intention that it should take effect upon the death of the grantor cannot be determined by anything that happened at that time. The statement of the grantor that “He was going to give it to her; it was going to be hers” is equally, if not more, consistent with an intention to pass title in the future than it is with an intention to pass title immediately. The evidence as to what happened at that time is so meager and indefinite that it is difficult to determine therefrom what the intention of the grantor was with respect to the passage of title. We must search the record for further evidence that might bear upon this question. We would know whether by his acts the grantor indicated that he still considered the property his. He remained in possession and continued to pay taxes upon the property. He occupied one room in the house, made repairs, collected rent, and took out three insurance policies. It is also worthy of note that Mrs. Keefe does not appear to have made any claim to this property during the grantor's life time. All of the grantor's acts subsequent to the purported delivery are inconsistent with a delivery with intent to immediately pass title. 16 Am.Jur. 513; Anderson v....