McGraw v. McGraw

• Decision Date: 07 March 1887
• Citation: 9 A. 846,79 Me. 257
• Parties: MCGRAW v. MCGRAW.
• Court: Maine Supreme Court

9 A. 846

79 Me. 257

MCGRAW

v. MCGRAW.¹

Supreme Judicial Court of Maine.

March 7, 1887.

On report from supreme judicial court, Washington county.

Writ of entry, wherein is demanded certain land in Eastport. Plaintiff claims title by virtue of deeds, James McGraw to Prank McGraw, dated May 15, 1876, acknowledged May 19, 1876; and from Frank McGraw to plaintiff, dated and acknowledged May 19, 1876,—both deeds being recorded May 22, 1876. The question involved was the delivery to plaintiff.

H. M. Heath, (E. E. Livermore, with him,) for plaintiff.

E. B. Harvey, for defendant.

PETERS, C. J. James McGraw, by deed dated May 15, 1876, conveyed a homestead to his minor son, who by deed dated May 19, 1876, conveyed the same to Catherine McGraw, the wife of James, and both deeds were recorded on the twenty-second day of the same month. If the deed to the plaintiff, Catherine McGraw, was never delivered to her, she cannot recover. We think a delivery is not proved. The further facts are these: The deeds having been sent for record by the husband, were recorded at his expense, and returned to him. He then placed them in a small hand-trunk, in his bed-room, in a file of other papers of his, where they remained till his death, when, by the consent of the plaintiff, they fell into the hands of the son William. No consideration was paid by the wife. The conveyance was not as an advancement, or as security for any debt. The deeds were merely a form to shield the husband against the recovery of fines which were at the date of the transaction likely to be adjudged against him by the state. A very strong fact against the plaintiff is that, although a witness and an intelligent person, she does not disclose a word ever said by the husband to her about the transaction in all his life-time. She says, on cross-examination, that the deed was in her possession, and is hers, and that is all she says about it. What she means by possession is that she took the trunk at one time. Had there been a delivery, she would be enabled to disclose more conversation and details about the deed. It also greatly makes against her that she applied for an assignment of dower out of her husband's real estate when he left none but this. It is contended by the plaintiff that she has her husband's confession of a delivery, by his executing another deed afterwards, in which he describes land as bounded on one side by the plaintiff's real estate, meaning the property in question. That act has its...