Madden v. Folin

• Decision Date: 11 March 1899
• Docket Number: 11133
• Citation: 56 P. 490,60 Kan. 334
• Parties: CHARLES WUESTER AND T. J. MADDEN v. MAGGIE FOLIN
• Court: Kansas Supreme Court

56 P. 490

60 Kan. 334

CHARLES WUESTER AND T. J. MADDEN v. MAGGIE FOLIN

No. 11133

Supreme Court of Kansas

March 11, 1899

Decided January, 1899.

Error from Marshall district court; R. B. SPILMAN, judge.

Judgment affirmed.

M. W Terry, T. J. Madden, and Waggener, Horton & Orr, for plaintiffs in error.

W. W Redmond, Cal. T. Mann, and E. A. Berry, for defendant in error.

OPINION

JOHNSTON, J.:

This was an action to quiet the title to a tract of land which was claimed by Maggie Folin, plaintiff below, under a deed executed by Mark Madden on October 14, 1895, purporting to convey the land to her, and claimed by the defendant T. J Madden under a will made two days later, in which the land was bequeathed to him by Mark Madden. Charles Wuester claimed under a lease of the land made by Mark Madden in his lifetime. The trial court, after hearing a great deal of testimony as to the execution and delivery of the deed, and as to the right of Maggie Folin to take and hold the land, found generally in her favor, and gave judgment accordingly.

One of the principal points of contention at the trial was whether there was a valid and effectual delivery of the deed to Maggie Folin, and, although the delivery was upheld by the findings of the trial court, its sufficiency is again challenged on this review. It appears that Mark Madden was the owner of 200 acres of land and some other property in Marshall county. On October 14, 1895, he asked his pastor, Father Hurley, to request H. K. Sharpe, an attorney living in the county, to call upon him. When Sharpe called he was informed by Madden that he desired to convey 100 acres of land to his niece, Maggie Folin, who at that time he thought lived in Louisville, Ky., and the remaining 100 acres he desired to convey to his nephew, James O'Toole. Sharpe prepared the deeds in accordance with his directions, and he executed both of them in the presence of witnesses. He indicated a desire to have the conveyances take effect at once, and directed Sharpe, in whose hands the deeds were left, to have them recorded at once. The deeds were filed for record on October 17, 1895, and Sharpe undertook to notify the grantees of the conveyances that had been made. On October 16, 1895, the will mentioned was made by Mark Madden, in which the deeds were referred to as wills, and it contained a provision devising all of the land to his nephew, T. J. Madden. On October 27, 1895, Mark Madden died without having made any other or further disposition of his property.

It appears that when the conveyance was made to Maggie Folin, Mark Madden had never seen her, and although he thought she was in this country she was in fact in Ireland, and remained there for several months afterward. She was a native of Ireland who came to this country in 1891 and remained here until May, 1895, when, learning that her mother was sick, she returned to Ireland to take care of her. After her mother died, in September, 1895, she left Ireland and returned to this country. While she was in correspondence with her uncle, Mark Madden, she never met him, and never learned of the conveyance of the land to her until some time after his death. Sharpe notified her of the conveyance and exercised control over the land until she arrived and took actual possession of the same. It thus appears that the deed in question was executed and placed in the hands of Sharpe before the will was made, and if it was completed as to delivery and acceptance it would seem to be sufficient to convey title. It is in due form, and there is no claim of undue influence being exercised upon the grantor to obtain the conveyance, or that he was in any way incapacitated to make it. The testimony tends to show that at the time of the conveyance he desired and intended to vest title in his niece, and it would seem that he accomplished his purpose unless there was in fact no delivery or the grantee was incapable of taking the title.

Much stress is placed on the fact that the deed was not placed in the hands of Maggie Folin until after the death of Madden and also that she had no knowledge of the gift or conveyance during his lifetime. It is argued that the acceptance by the grantee is essential to a complete delivery, that there was no actual acceptance by her, and that unless the conveyance was complete in the lifetime of the grantor no title could pass to her. Before a deed can operate as a valid transfer of title there must be a delivery of the instrument, and it must be effected during the life of the grantor. It is not essential, however, for the grantor to deliver the instrument to the grantee in person. An unconditional delivery to a third person for the use and benefit of the grantee, where the grantor intends to divest the title and to part with all control over the instrument, is ordinarily a sufficient delivery. What constitutes a sufficient delivery is largely a matter of intention, and the usual test is, Did the grantor by his acts or words, or both, manifest an intention to make the instrument his deed, and thereby divest himself of title? When the deed has passed beyond the control of the grantor, and he has placed it in the hands of a third person with a declared or manifest purpose to make a present transfer of the title, a formal acceptance by the grantee is not required. Where...