Lower v. Lower
| Decision Date | 28 May 1924 |
| Docket Number | No. 5278.,5278. |
| Parties | LOWER v. LOWER. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Faulk County; J. H. Bottum, Judge.
Suit by Hettie Lower against Roy Lower to determine adverse claims. From a judgment for plaintiff and order denying a new trial, defendant appeals. Affirmed.F. E. Snider, of Faulkton, for appellant.
Campbell & Fletcher, of Aberdeen, for respondent.
The facts of this case as shown by the evidence are practically without dispute. W. H. Lower in his lifetime decided to make disposition of his land so that in the event of his death title to his lands would vest in his wife, and certain of his children. Pursuant to purpose, he and wife July 28, 1919, went to witness J. A. Dixon, president of State Bank of Seneca, this state, at which Lower kept the papers and transacted all his business with reference to property. Dixon was intimately acquainted with Lower. Lower deposited his moneys from time to time in the bank, and Dixon kept for him his certificates of deposit, and attended to his real estate loans. Lower's papers were kept in a safety deposit box in the bank to which he did not at any time have access during Mr. Dixon's connection with the bank, but he did have access thereto after Mr. Dixon severed his connection with the bank. On the day in question, Lower and wife had Dixon draw the three deeds involved in these proceedings. At the same time he instructed Dixon to draw the deeds he said to Dixon:
“I want you to make out three warranty deeds so as to divide my land among my children and wife so that it will not be necessary to go through court after my death.”
Dixon asked him why he did not make a will. To which Lower replied:
“I don't know anything about a will, and I do not want any monkey business over my estate after my death.”
After the deeds were drawn, Lower said:
He further said:
“This is a final disposition of the land, and I expect you to follow my instructions fully in regard to having the deeds recorded after my death.”
After that the deeds were placed in the safety deposit box, where they remained until his death, at which time they were taken from the box by plaintiff and placed of record. It is contended by appellant that this does not make such showing of delivery as is sufficient under the law to vest title in the grantees in the deeds.
“It has also been said that a delivery may be by acts or words, or by both, or by one without the other. But it is well settled that several things are necessary to constitute a valid or effective delivery of a deed. One of the essential requisites of a sufficient delivery is that the deed passed beyond the dominion and control of the grantor. Another requisite is the intention of the grantor, and of the person to whom the deed is delivered, that it shall presently become operative and effectual. The essence of delivery is the intention of the parties. In order to make the delivery valid, it must be manifest that the grantor intended the grantee to become possessed of the estate. It is not essential in all cases that the deed should be delivered into the actual possession of the grantee. It may be delivered to a third person for the benefit of the grantee. ***
If a future control by the grantor is retained over the deed, no estate passes.”
Walter v. Way, 170 Ill. 96, 48 N. E. 421.
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