Maxwell v. Harper

• Decision Date: 05 January 1909
• Citation: 51 Wash. 351,98 P. 756
• Parties: MAXWELL et al. v. HARPER et ux.
• Court: Washington Supreme Court

98 P. 756

51 Wash. 351

MAXWELL et al. v. HARPER et ux.

Supreme Court of Washington

January 5, 1909

Appeal from Superior Court, Columbia County; Chester F. Miller Judge.

Action by Frank A. Maxwell and others, and Hardy E. Hamm, as executor of W. A. Maxwell, deceased, against Dick Harper and another. From a judgment for plaintiffs, defendants appeal. Reversed.

Cain &amp Hurspool, for appellants.

M. M Godman and Will H. Fouts, for respondents.

CROW J.

Action by Frank A. Maxwell and others against Dick Harper and Laura Harper, his wife, to cancel and set aside a deed to land in Columbia county, and to quiet title. From a judgment in favor of the plaintiffs, the defendants have appealed.

The evidence shows that one W. A. Maxwell on October 22, 1906, executed a warranty deed for the land now in dispute to the appellant Laura Harper, and delivered it to F. A. McMasters, cashier of the Dayton National Bank, of which bank he (Maxwell) was then president; that he had consulted with Mr. McMasters, who was an attorney, with a view to taking the necessary legal steps for giving the land to Laura Harper, but reserving the rents and profits to himself during his lifetime; that Mr. McMasters advised him that such a gift and transfer could be made by deed; that thereupon, and for that purpose, Maxwell requested McMasters to draw the deed; that with the design of expressing Maxwell's intent with regard to its delivery, but without explicit directions from him as to the language to be used, McMasters inserted in the deed the following clause: 'This deed is to be held by the Dayton National Bank of Dayton, Washington, until time of death, and I hereby appoint said bank (acting through its officers) my agent to deliver this instrument to Laura Harper upon my death and that the said delivery may have the same force and effect as if delivered to her by me during my lifetime'--that the deed was executed by W. A. Maxwell, and, together with certain stock certificates, was delivered to Mr. McMasters as cashier of the bank without further instructions; that Mr. McMasters inclosed the deed and certificates in an envelope upon which he wrote the name of W. A. Maxwell, and placed them in a safe of the bank to which Maxwell did not have the combination; that Maxwell was at the time seriously ill; that his physician had advised him he could do nothing further for him; that he was a bachelor; that for many years he had lived and made his home with the appellants, Dick Harper and Laura Harper, his wife, Dick Harper being his cousin; that he desired to retain the use of the land for himself during his life, but wished it to go to Mrs. Harper at his death; that he ceased to be president of the bank about two months after the date of the deed; that McMasters also ceased to be cashier, being succeeded by one Jackson; that the deed then in the bank was turned over to Jackson by McMasters; that shortly thereafter Jackson consulted Maxwell with regard to the deed; that Maxwell then told him to keep it; that Maxwell died on October 20, 1907, and that on October 23, 1907, Jackson delivered the deed to the appellant Laura Harper, who caused it to be recorded. The evidence further shows: That at or about the time W. A. Maxwell executed the deed he also indorsed certain certificates of mining stock and bank stock to Laura Harper, and delivered them to McMasters, the indorsement on the bank stock reading as follows: 'For value received I hereby sell and transfer unto Laura Harper six shares of the capital stock represented by the within certificate, and do hereby irrevocably constitute and appoint the cashier of said bank to deliver said stock to her upon my death; to transfer the said stock on the books of the within named corporation, with full power of substitution in the premises. Dated October 22nd, 1906.' That afterwards the Columbia National Bank of Dayton took over and succeeded to the business of the Dayton National Bank, and it then became necessary to transfer the bank stock above mentioned. That thereupon Jackson, the cashier, conferred with Maxwell in regard to such transfer, and was directed by him to erase the name of Laura Harper and insert that of another assignee. That this was done, the stock being sold and the proceeds placed to the credit of Maxwell in his bank account. That on September 28, 1907, Maxwell executed a lease of the land for two years to one Simmerman, who was then his tenant. That in April, 1907, he mortgaged the land to Baker & Baker for $5,000, and used the proceeds of the loan, but the evidence fails to show that Baker & Baker had any knowledge or notice of the execution and delivery of the deed, or that the appellant Laura Harper knew of or consented to the execution of the mortgage. About September 1, 1907, after the sale of the bank stock and the execution of the mortgage, and while the deed remained in the bank, Maxwell had a conversation with Hardy E. Hamm, then his attorney, now his executor, to which conversation Mr. Hamm testified, and in which Maxwell stated that, owing to the change in the bank, he did not know whether the Columbia National Bank had authority to hold the deed, and then requested Mr. Hamm to investigate and attend to the matter so that the deed might be held, kept for, and delivered to Mrs. Harper upon his death. The deed was never in the possession of Maxwell after the date of its original execution, nor was it out of the custody of the bank until it was delivered to Mrs. Harper. Maxwell died testate, and the plaintiffs Frank A. Maxwell and Richard E. Maxwell, Friend Isaac Maxwell, and Mary A. Simmerman, his brothers and sister, being his legatees, and Hardy E. Hamm as his executor, instituted this action to set aside the deed and quiet their title. They alleged (1) fraud and undue influence on the part of the appellants in procuring the execution of the deed; and (2) that the deed was void for want of delivery. The claim of fraud and undue influence was entirely abandoned on the trial, no evidence being introduced to support the same, and the controlling question now before us is whether the deed was void for want of delivery. The trial court found that W. A. Maxwell did not intend to vest in Laura Harper a present interest or estate; that he did not intend to, nor did he, part with dominion or control over the deed; and that he was the owner of the land at the time of his death.

From a careful examination of the evidence and the entire record, we are compelled to conclude that the trial judge erred in making the above findings, and in his conclusions of law thereon. The question of the delivery or nondelivery of a deed is one that must be governed by the intent of the grantor. Matson v. Johnson, 48 Wash. 256, 93 P. 324. Such intent must be gathered from the terms of the deed itself, if it can be consistently done. If the language used is susceptible of more than one construction, that one must be adopted which militates most strongly against the interests of the grantor. Devlin on Deeds, § 848. If the deed upon its...