Magoffin v. Watros

• Decision Date: 20 May 1920
• Citation: 178 N.W. 134,45 N.D. 406
• Court: North Dakota Supreme Court

178 N.W. 134

45 N.D. 406

EBENEZER MAGOFFIN, as Administrator of the Estate of Nellie A. Maxwell, Deceased, Appellant, v. VERA N. WATROS, a Minor, by T. L. Brouillard, her Guardian ad Litem, Respondent

Supreme Court of North Dakota

May 20, 1920

Action to determine adverse claims, in District Court, Dickey County, Graham, J.

The plaintiff has appealed from the judgment rendered quieting title, in part of the lands, in the estate, and, in another part, in the defendant, and has demanded a trial de novo.

Affirmed in part and reversed in part.

Neither party recovered any costs on this appeal.

Benjamin Porter, and W. S. Lauder, for appellant.

Where a deed is found in the possession of the grantor, the presumption is, in the absence of evidence to the contrary that it has not been delivered. 13 Cyc. 733; Shetler v Stewart, 133 Iowa 320, 170 N.W. 310; 110 N.W. 582; Wilenou v. Handlon, 208 Ill. 104, 69 N.E. 892.

When a deed unrecorded, is found in the possession of a defendant grantor, the burden of proof is on the plaintiff claiming title under such deed to show a delivery. 13 Cyc. 730; Devaney v. Koyne, 54 Mich. 116, 19 N.W. 772; Tyler v. Hall, 106 Mo. 313, 27 Am. St. Rep. 338, 17 S.W. 319.

T. L Brouillard, for respondent.

BRONSON, J. CHRISTIANSON, Ch. J. and BIRDZELL and GRACE, JJ. concur, ROBINSON, J. (concurring in part).

OPINION

Statement by BRONSON, J.

This is an action to determine adverse claims. The plaintiff is the administrator of the estate of Nellie A. Maxwell, deceased. The defendant is the infant daughter of the deceased.

On November 19th, 1914, the mother executed two warranty deeds, her daughter being named therein as grantee. The only testimony concerning the execution and the delivery of such deeds is in the form of an affidavit, stipulated into the record by the parties. It reads as follows:

"G. L. Strobeck being first duly sworn on his oath says that he is a citizens of the United States and over the age of twenty one years. That on the 19th day of November A. D. 1914, Nellie A. Watros, being the same person above named as Nellie A. Maxwell, deceased came into my bank at Cogswell, Sargent county, North Dakota, and requested me to draw two deeds, one for the north half of section nine township, 130 north of range 56 West Sargent county North Dakota, the other for lots 1, 2, 3, 4 of block six of Campbell's addition to the village of Cogswell, in said county, which I then and there did, and at her request named as grantee in each of said deeds her daughter, Vera N. Watros; she telling me at the time and occasionally thereafter that if anything should happen to her that she wanted the deeds recorded. Said deeds remained in the files of the Cogswell State Bank of Cogswell, North Dakota, from aforesaid drawing until after her death. Then they were delivered to the administrator of her estate."

On September 24, 1918, the mother executed two other warranty deeds with the daughter named as grantee therein. The only testimony concerning the execution and the delivery of such deeds is likewise in the form of an affidavit, stipulated by the parties into the record. It reads as follows:

"F. B. Dille, being first duly sworn on his oath, says that he is a citizen of the United States and over the age of twenty-one years. That on the 24th day of September A. D. 1918, Nellie A. Maxwell, formerly Nellie A. Watros, came to my bank at Monango, North Dakota, and requested me to draw for her two deeds conveying to her daughter, Vera N. Watros, the northwest quarter and the southwest quarter of section 5 in twp. 131 north of range 63 west, in Dickey county, North Dakota, which I then did then and there and at her request. She at that time left said deeds with me without any instructions at all as to their disposition. Said deeds remained in the files of the Farmers & Merchants State Bank of Monango, North Dakota, from aforesaid drawing until after her death. Then they were delivered to the administrator of her estate."

It was further stipulated between the parties that no consideration was ever given by the grantee or anyone else for such deeds; that the daughter never had any knowledge of the existence of such deeds until after the death of her mother; that the mother was the owner and in possession of the real property described therein; that the daughter never was in actual possession of any such real property, never received any rents or profits therefrom, and never paid any taxes thereon. The record facts accordingly are entirely stipulated; they are not in dispute. The trial court, upon findings, rendered judgment decreeing the estate of the mother to be the owner of the two quarter sections of land situated. in Dickey county, and the daughter to be the owner of the half section of land in Sargent county and the four lots in the village of Cogswell.

At first the plaintiff appealed from that part of the judgment decreeing ownership of the lands in the daughter. Thereafter an appeal was perfected from the entire judgment and the same has now been submitted to this court upon the appeal from the entire judgment. The plaintiff has demanded a trial anew in this court. The sole question involved is whether there was a delivery of the deeds so executed. The trial court has found that there was a delivery of the deeds executed in 1914, but no delivery of the deeds executed in 1918.

BRONSON J. (after stating the facts as above). The question of the delivery of the deeds is a question of intention. Devlin, Deeds, 3d ed. §§ 262, 308; O'Brien v. O'Brien, 19 N.D. 713, 715; 125 N.W. 307; Hudson v. Hudson, 287 Ill. 286, 122 N.E. 497. This is a question mainly of fact. Devlin, Deeds, §§ 262, 308; O'Brien v. O'Brien, 19 N.D. 713, 125 N.W. 307. The legal principles applicable are not seriously in dispute. It has been held by this court that a deed delivered to a third person to be delivered after the grantor's death, operates as a valid delivery and present transfer of title, if made with the intent that all control and dominion thereover terminates at the time of such delivery. O'Brien v. O'Brien, 19 N.D. 713, 716, 125 N.W. 307; Arnegaard v. Arnegaard, 7 N.D. 475, 495, 41 L.R.A. 258, 75 N.W. 797. See 18 C. J. 208.

Section 5500, Comp. Laws 1913 (so far as applicable) provides that, though a grant is not actually delivered into the possession of the grantee, it is yet to be deemed constructively delivered when it is delivered to a stranger for the benefit of a grantee, and his assent is shown or may be presumed.

The facts in this record are indeed meager. The record fails to disclose the relationship of the depositaries. Strobeck and Dille, either to the deceased or to the daughter. Whether such persons were agents of the deceased, agents of the daughter, or strangers, must be left entirely to inferences and presumption. There is no proof nor contention that the depositaries were the agents of the daughter, and no contention accordingly is made that actual delivery was in fact made to the daughter or her agents. If the depositaries were agents of the deceased, there was no constructive delivery by reason of the absence of proof of any agreement of the parties therefor, pursuant to subdivision 1, § 5500, Comp. Laws 1913.

Accordingly, if there exists any delivery in law, it must exist by reason of a constructive delivery made to the depositaries as strangers, or third parties, pursuant to § 5500, Comp. Laws 1913, above quoted. It is the contention of the respondent daughter, concerning the 1914 deeds, that there is disclosed an intent to make delivery based upon the authority of Arnegaard v. Arnegaard, 7 N.D. 475, 41 L.R.A. 258, 75 N.W. 797; Bury v. Young, 98 Cal. 446, 35 Am. St. Rep. 186, 33 P. 338; and Cooper v. Cooper, 162 Mich. 304, 127 N.W. 266.

In Arnegaard v. Arnegaard, supra, the motive and intention of the grantor were more clearly shown. In that case the scrivener, the cashier of the bank, testified that the grantor stated that he desired his boys to have the property and he wished to deed it to them; that the grantor said he did not know anything about wills but that he did know something about deeds and mortgages and he preferred to have it deeded; that he delivered the deeds over to the cashier, requesting him to take them and hold them, and in case of the grantor's death to put them on record; and he requested the cashier to say nothing to anybody, about his having deeded this property. Furthermore in this case the trial court made a finding (not in trying the case anew under the Newman Act), held finding in favor of actual delivery and this court, upon reviewing such that it would not disturb the same unless it appeared to be clearly erroneous. Accordingly the finding of actual delivery was upheld. Likewise in Bury v. Young, supra, the deed was executed from father to daughter and was given to one Hazen, an attorney, with instructions not to record it but to deliver it to the grantees upon his death. The trial court made a finding that the grantor delivered such deed to Hazen for the grantees and instructed him to hold the same for such grantees without recording until the grantor's death, and thereupon to deliver the same to the grantee; that such grantor parted with all dominion over the deed and reserved no right to recall it or alter its provisions or to have or enjoy any other interest in the premises than to hold the use of it until his death. The appellate court held that these facts as stated, and found, in the findings constituted a valid delivery of the deed.

In Cooper v. Cooper, supra, the grantor executed deeds to his sons and placed them in a sealed envelope, indorsed with the names of the grantees. On his way home from the scrivener he left this envelope with a friend and...