McGrath v. Pothen

• Decision Date: 09 July 1926
• Docket Number: No. 25439.,25439.
• Citation: 209 N.W. 752,168 Minn. 206
• Parties: McGRATH v. POTHEN et al.
• Court: Minnesota Supreme Court

209 N.W. 752

168 Minn. 206

McGRATH v. POTHEN et al.

No. 25439.

Supreme Court of Minnesota.

July 9, 1926.

Appeal from District Court, Ramsey County; Grier M. Orr, Judge.

Action by Mary A. McGrath against Agnes M. Pothen and others. After findings directing judgments that defendants are owners in fee of certain land, subject to the life estate of plaintiff, plaintiff appeals from an order denying a new trial. Affirmed.

Christofferson, Walsh, Christofferson & Jackson, of St. Paul, for appellant.

O. E. Holman and Rosenthal & Danz, all of St. Paul, for respondents.

HOLT, J.

Action to determine adverse claims to three tracts of land in St. Paul wherein findings were made directing judgment that defendants are the owners in fee, subject to the life estate therein of plaintiff. Plaintiff appeals from the order denying a new trial.

Plaintiff is the mother of the defendants, who were decreed the fee owners, and it is undisputed that she was the owner of the properties when she conveyed the same to her brother, Harry Fritz, in October, 1917. The evidence clearly indicates that the purpose of the conveyance was to place the properties out of the reach of the grantor's creditors. This deed was promptly recorded. Plaintiff claims that the same time her brother reconveyed the same lands to her, but that this deed was obtained from plaintiff by her mother, who refused to return it, so that it was never recorded. The evidence was such that no just criticism can be made of the refusal to find that such a reconveyance was made by the brother. Deeds were drawn in 1922 between plaintiff and her brother, but it is not seriously contended that these were ever delivered. The fact remains that in 1917 plaintiff deeded the properties to her brother under such circumstances that she could never question his absolute title thereto, and he continued such owner until the execution by him, on October 21, 1924, of two warranty deeds of the properties, in one of which plaintiff is the grantee and in the other her children, the defendants.

Upon this record it cannot be claimed, even were it material (which we do not think it is [Redmond v. Hayes, 116 Minn. 403, 133 N. W. 1016]), that plaintiff's brother held the title merely to prevent her creditors from reaching it, for as to two of the tracts he acquired the sheriff's certificate on the foreclosure of a mortgage executed by plaintiff while she was the record owner, and as to all, when the conveyance by plaintiff of 1917 was assailed in an action by one of her judgment creditors, to which action her brother and she were parties, it was determined that the brother had a substantial interest and lien, but that such lien was subject to the judgment lien of the plaintiff in that action, and relief was granted as to the tract not involved in the mortgage foreclosure sale, and it was denied as to the two so involved, because there was no equity above that of the mortgages thereon.

We therefore come directly to the effect of the two deeds mentioned, brushing aside the technical objections to the assignments of error. The first question is, Did the court err in holding that there was effective delivery to the defendants, grantees in the one deed? The facts are these: Plaintiff and her brother and his wife went to a bank where a notary public drew the deed to her children, and with reference thereto plaintiff testified that she wanted the title conveyed to the children, and that later in the day she wrote upon the deed "after my death, Mary A. Pothen." Pothen was then her name. That deed was signed and acknowledged in the bank. Thereupon the parties, for what reason does not appear, left the bank, and drove some distance to an office where a daughter of plaintiff was employed as a stenographer, and had her draw a warranty deed to the same three properties wherein the brother and his wife were also grantors and the grantee was plaintiff. The deed was signed and acknowledged before a notary public, and then all went to the brother's home for supper. The brother was a police officer, and had to go on duty before all had finished supper. When plaintiff was about to go home, she asked for the deeds, and her sister-in-law picked them up from a table, and handed them to plaintiff. So far there is no dispute. There was ample testimony from which the court could find that the grantors made an irrevocable delivery of both of these deeds, that plaintiff agreed to place both in a bank vault and not to record either until the death of the brother, the grantor. The parting of the possession and a surrender of authority over the deed by the grantor constitutes a delivery thereof, even though there is a condition attached...