McKemey v. Ketchum

• Decision Date: 19 December 1919
• Docket Number: No. 32488.,32488.
• Parties: MCKEMEY v. KETCHUM.
• Court: Iowa Supreme Court

188 Iowa 1081

175 N.W. 325

MCKEMEY

v.KETCHUM.

No. 32488.

Supreme Court of Iowa.

Dec. 19, 1919.

Appeal from District Court, Jefferson County; D. M. Anderson, Judge.

J. W. Gilchrist died on February 6, 1915. There was a paper purporting to be a deed of date August 1, 1908, in which he reserved a life estate and made Anna Eckles Ketchum grantee. The trial court holds this deed was not delivered, and therefore canceled it. The grantee appeals. Reversed.Richard C. Leggett, of Fairfield, for appellant.

Starr & Jordan and E. F. Simmons, all of Fairfield, for appellee.

SALINGER, J.

If this deed was not delivered, it must be because there was no manual tradition of the paper. The deed in question bears date August 1, 1908. It names appellant as grantee. It reserves a life estate in the grantor, and was duly acknowledged. When the will of grantor was being prepared, the scrivener inquired of him: “What about the property on the south side of the square? What are you going to do about that?” Testator answered: “Why, I have already deeded that to Anna Eckles.” He had a box in a bank. After his death the box was opened. The executor appellee found said deed therein. It was inclosed in an envelope on which was indorsed, “Anna Eckles' deed to the south side.” The executor handed this deed to Mrs. Ketchum, the grantee in the deed. She looked at it and inquired whether it should be recorded. Being answered in the affirmative, she returned it to the executor with instructions to have it recorded. He caused this to be done.

[1] Manual tradition of the deed is not essential. It has never been claimed that a physical delivery of land is necessary. The deed is but a symbol of the transfer of the land. Therefore it is settled that manual tradition of the deed is not essential. True, such tradition is evidence of intent to part with title. But it is not the sole evidence. The vital point is whether there is such intent, and it may be found to exist--though some particular means of showing intent is absent. If that were not so, an oral sale of land would always be void; for there would be no deed to hand over. In Shelton's Case, 1 Croke, Rep. 724-738, Eliz. the party sealed the deed, had it read, but did not deliver it, nor did the grantee take it; it was merely left behind them “in the same place.” It was held to be a good grant on the statement that the parties came there for that purpose “and performed all that was requisite for the perfecting of it except an actual delivery, and that, it being left behind them and not countermanded, it shall be said to be a delivery in law.”

II. Since then, manual tradition is, contrary to the rule in the delivery of chattels, not indispensable, it is no argument against the deed that there was a failure to make physical delivery of the paper, because it was in the power of the grantor to destroy the paper. The authorities are overwhelmingly opposed to the argument that the keeping of physical control of the paper by the grantor is conclusive against delivery. It has been ruled many times that an effective delivery of a deed is not negatived because it remained in the physical power of grantor to retake the deed, or because he retained mental power to alter his intentions. In Ray v. Hallenbeck (C. C.) 42 Fed. 381, after finding there was an original purpose to execute the deed and that the paper was later seen in a drawer in the house where both parties to the instrument lived, it is held to be a good delivery where the paper ultimately reached the grantee, because, while the grantor kept control, he had not changed his original purpose, though he was at liberty to do so.

Where one had the mental power to alter his intention and the physical power to destroy a deed in his possession, and dies without doing either, there is but little reason for saying that this deed shall be inoperative simply because during life he might have done that which he did not do. It is much more consonant with reason to determine the effect of the deed by the intention existing up to the time of death than to refuse to give it that effect, because the intention might have been changed. Newton v. Bealer, 41 Iowa, 339;Lippold v. Lippold, 112 Iowa, 136, 83 N. W. 809, 84 Am. St. Rep. 331;Trask v. Trask, 90 Iowa, 318, 57 N. W. 841, 48 Am. St. Rep. 446;Albrecht v. Albrecht, 121 Iowa, at 524, 525, 96 N. W. 1087;Hogan v. Sullivan, 114 Iowa, 456, 87 N. W. 447;Munro v. Bowles, 187 Ill. 346, 58 N. E. 331, 54 L. R. A. 865; Hutton v. Cramer, 10 Ariz. 110, 85 Pac. 483, 103 Pac. 497; Dettmer v. Behrens, 106 Iowa, 585, 76 N. W. 853, 68 Am. St. Rep. 326;Sneathern v. Sneathern, 24 Am. St. Rep. 326.

In Criswell v. Criswell, 138 Iowa, 607, 116 N. W. 713, there was not a moment after the father told the nurse what to do with the paper when he did not retain the power to demand and obtain its return, and therefore not a moment when he did not have the paper under his control. But we held that, despite this, the paper was effectively delivered when, after the death, this custodian found that it named a certain son as grantee and thereupon handed him the paper. In White v. Watts, 118 Iowa, 552, 92 N. W. 660, we held that the fact that the grantor had power to recall was not controlling, where he said nothing and did nothing after he left the paper with another to be delivered to the grantee after death, and never called for the paper. In Stevens v. Hatch, 6 Minn. 64 (Gil. 19), a new deed was made to correct a misdescription. The grantor wrote the grantee that the new deed was in the grantor's safe and that he would rather not record it until he saw grantee, in order that both might see before recording whether all was right. Grantee acceding to this, it was held that the new deed was well delivered. How does this differ in effect from the keeping of the deed at bar in the box of the grantor? Why does such retention destroy delivery if keeping the deed in the safe of grantor will not?

III. As to the effect of keeping control, Foreman v. Archer, 130 Iowa, 52, 53, 54, 106 N. W. 372, is almost conclusive against the decree below. In that case a grantor made a deed and reclaimed it from a person with whom she had deposited it. She then placed it in a satchel near her bed, merely instructing a Miss Kinsley that the latter should, if anything happened to grantor, notify relatives so that they might know where the paper was. In the case at bar the deed was kept in grantor's box. In the Foreman Case it was kept in grantor's satchel. In the case at bar the grantee knew where the deed was. In the Foreman Case those interested were to be advised only after something happened to the grantor. It is surely true that in the Foreman Case the grantor kept control of the deed by keeping it in her satchel, and that she might at any time have destroyed it. Not only that, but she avowed that she was keeping the paper where it was so that she might change her mind; she “wanted to retain it so if the children went wrong I could change it if I wished to.” We held there was a good delivery. We point out that grantor never expressed a wish or desirethat her grandchildren should not have the property, unless that could be implied from her act in having regained possession of the deed from the original depositary. And we say that the fact that grantor desired to retain deed, in case she saw cause to change her mind because the children went wrong, indicated an intention that the conveyance should be given effect upon her death.

We now hold that the decree cannot be sustained merely because grantor kept the deed in his own box and retained the power to destroy the deed--a power which he did not exercise. We recur to the point that all required is evidence that grantor intended to pass title.

[2][3] IV. In determining the intention with which grantor leaves the deed with another, evidence of any declarations or conversations on the subject at that time or a subsequent one is competent. Dean v. Parker, 88 Cal. 283, 26 Pac. 91;Corker v. Corker, 95 Cal. 308, 30 Pac. 541. Delivery will be presumed from very slight circumstances, when by declarations or otherwise the grantor has uniformly avowed an intention to convey the land to grantee. Crabtree v. Crabtree, 159 Ill. 342, 42 N. E. 787;Sneathen v. Sneathen, 104 Mo. 201, 16 S. W. 497, 24 Am. St. Rep. 330;Newton v. Bealer, 41 Iowa, 338-340;Walker v. Walker, 42 Ill. 311, 89 Am. Dec. 445, approved 41 Iowa, 340; Doe v. Knight, 5 Barn. & Cres. at 671, 672, 686, 687. When one has the burden of showing consideration for a note, a prima facie supporting consideration is made out by showing that, when deceased delivered the note, he stated that he was doing so in order to protect payee in what he was owing her. In re Rule, 178 Iowa, 184, 159 N. W. 699. It is elementary that subsequent declarations in harmony with the deed are of great weight. It was held in Re Geisinger, 11 Pa. Co. Ct. R. 168, that a declaration in a will that deeds had been deposited with a third person to be delivered to grantee after the death of the grantor is entitled to great weight. Admissions that deed has been made and is being held for a loan will establish delivery, though the deed is found with the grantor, since intent is the question. Chastek v. Souba, 93 Minn. 418, 101 N. W. 618. Here when the will was being prepared, the scrivener asked grantor: “What about the property on the south side of the street? What are you going to do about that?” To which it was answered, “I have already deeded that to Anna Eckles.” And the deed kept by grantor continued to retain his indorsement that it was deed to appellant's property.

In Newton v. Bealer, 41 Iowa, 338, the grantor voluntarily executed a deed to certain lands to a son, reserving the use and occupancy to himself during his lifetime. This deed was kept by the father in a chest with other papers. When, shortly before the grantor's death one of his sons suggested the father had better...