Lawn v. Donavan
| Decision Date | 01 October 1895 |
| Docket Number | 61 |
| Parties | ZORAH LAWN v. JAMES DONAVAN |
| Court | Kansas Court of Appeals |
Opinion Filed November 11, 1895.
MEMORANDUM.--Error from Lincoln district court; W. G EASTLAND, judge. Action by Zorah Lawn against James Donavan. Judgment for defendant. Plaintiff brings the case here. Affirmed.
Judgment affirmed.
David Ritchie, for plaintiff in error.
E. A McFarland, for defendant in error.
OPINION
The plaintiff in error, who was plaintiff below, claims to be the owner of a tract of land in Lincoln county, and brings this action to recover possession of a deed as the evidence of her title thereto, which she alleges is wrongfully detained from her by the defendant. The land formerly belonged to one George S. Donavan, now deceased, who died intestate, by his own hand, some time in July, 1889. After he had formed the purpose to take his own life, he signed and acknowledged a warranty deed in the usual form, purporting to convey the farm upon which he was then living to the plaintiff. This deed was found in a stand or table drawer in his house, and with it a letter to his father, the defendant, requesting him to have it recorded, and then to give it to the plaintiff as a voluntary gift to her. It does not appear that any one had any knowledge, prior to Donavan's death, of the making of this deed, except the register of deeds of the county, who had written it, and before whom it was acknowledged.
Upon the above facts, the question arises whether the plaintiff acquired any interest in the land described in the deed, so as to entitle her to its possession, as the evidence of her title. It is elementary law that the delivery of a deed is as essential to its validity as the signature of the grantor. Whether a delivery was in fact made in any particular case depends largely upon the intention of the grantor, which must be judged of by his acts and conduct. A delivery may be effected by words or by acts, or by both combined, provided such words or acts are consistent with an intention on the part of the grantor to surrender all further control and power of disposition of the instrument. It is not necessary that the grantee be given actual control before a delivery can be said to have been made; it is only essential that there be the voluntary parting with control by the grantor; and this may be effected by a delivery to a depositary under such conditions as to make it irrevocable; or it may be even by a retention of actual possession of the instrument by the grantor, when such possession is accompanied by words clearly indicating that it is retained by him as a mere custodian for the grantee. Hence, what particular act will be held to constitute a valid delivery depends largely upon the facts of the case in which such act is relied upon. In this case there was no manual delivery of the deed to anyone during the life of the grantor; consequently many of the authorities cited by the plaintiff...
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Hoard v. Jones
... ... In such event ... they would pass no title to the grantees named. ( Burton ... v. Boyd, 7 Kan. 17; Lawn v. Donovan, 2 Kan.App ... 404, 42 P. 744. Stone v. French, 37 Kan. 145, 14 P ... 530. Worth v. Butler, 83 Kan. 513, 112 P. 111 ... Alward ... ...
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Hutton v. Cramer
... ... 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, ... ...
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Johnson v. Brown, 7118
... ... title had passed, that she so understood and had so intended ... We have ... read and fully considered Lawn v. Donovan, 2 Kan ... App. 404, 42 P. 744, ... [144 P.2d 203] ... and freely concede that the reasoning therein is apt, ... pertinent, and ... ...
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Mumpower v. Castle
...It was not delivered during his life, and after his death no one had the power, express or implied, to deliver it." In Lawn v. Donovan, 2 Kan. App. 404, 42 Pac. 744, it was held that there was no delivery of a deed duly executed and acknowledged by the grantor found in his possession at the......