Norton v. Norton

• Decision Date: 24 October 1922
• Citation: 105 Or. 651,209 P. 1048
• Parties: NORTON v. NORTON ET AL. [*]
• Court: Oregon Supreme Court

209 P. 1048

105 Or. 651

NORTON v. NORTON ET AL. ^[*]

Supreme Court of Oregon

October 24, 1922

Department 2.

Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge.

Suit by Mary Norton against Norma Norton and another. From decree for plaintiff, defendants appeal. Affirmed.

This is a suit to declare a certain deed void. A decree was rendered in the circuit court in favor of plaintiff. Defendants appeal.

The circumstances leading up to the transaction are about as follows: Defendant Norma Norton, who is the grandchild of plaintiff, was taken by plaintiff and her husband when he was a child two years of age. In 1900, by a rather irregular proceeding, he was adopted as the child of Seba Norton, the husband of plaintiff, but not by plaintiff. During that year Seba Norton executed his will, and among other things devised to the plaintiff the property in question in this suit, with remainder after her death to defendant Norma Norton upon this condition:

"Providing said child who is now seven years old shall prove a good boy. R. Dundas to be the judge, but if said Norma should prove to be a bad boy and unworthy child, then the property to be equally divided among the other heirs by the administrator of the estate and guardian of said Norma, the minor and adopted child."

After the death of Seba Norton it was learned that the land was owned by plaintiff and her husband as an estate by entirety and therefore the will was not effective to transfer the title to the land in question.

About February 16, 1905, plaintiff went to Judge Thomas F. Ryan her legal adviser, with a view to arranging matters so that she could leave her property to Norma Norton after her death. Plaintiff appeared to have little faith in wills. Judge Ryan prepared the deed in question, which Mrs. Norton signed and acknowledged, and he told her not to deliver it to any one "except she felt she was dying." Plaintiff took the instrument home with her, and kept it several days. Norma Norton was then about 13 years old. Plaintiff pleads and contends in effect that it was understood that, if defendant Norma Norton should live with her as a companion upon the farm, and assist her the remainder of her life, he should have the property at her death, but that, in the event he failed to do so, then the instrument was to be returned to plaintiff, and be void. About the 20th day of that month plaintiff, being ill, gave the deed to W. G. Randall, with instructions, as she testifies, that "if Norma left me I had to have it back, because that is all the home I ever had and he said he would." Otherwise Randall was to keep the deed until her death, and then deliver it to Norma. After the deed was prepared Judge Ryan wrote on the envelope containing the deed as follows:

"This contains a deed in escrow given by Mary Norton to Normie Norton and delivered this _____ day of February, 1905, to _____ with instructions to deliver the same to the said Normie Norton upon the death of the said Mrs. Mary Norton and not otherwise."

After the deed was deposited with Mr. Randall his name was inserted in the blank on the envelope in the presence of two witnesses. When Norma was about 17 years of age, in 1909 or 1910, he deserted the plaintiff, and has never had anything to do with her since in the way of assisting her or living with her upon the land. Mrs. Norton has remained in possession of the land during all of the time mentioned. She seems to have paid no attention to the instrument in question until she thought of selling the land, when it appeared that the deed had been signed. For the last ten years Norma Norton has made his home with the Randalls. Plaintiff demands the return of the deed, and instituted this suit for that purpose.

Grant B. Dimick, of Oregon City (W. L. Mulvey, of Oregon City, on the brief), for appellants.

Charles T. Sievers, of Oregon City (Brownell &amp Sievers, of Oregon City, on the brief), for respondent.

BEAN, J. (after stating the facts as above).

The pivotal point in this case is in relation to the delivery of the deed in question.

A delivery of a deed to a third person for the grantee is absolute, unless the grantor at the time of making it mentioned some intention of retaining control thereof, or there are circumstances showing the deposit was made subject to recall. Dieckman v. Jaeger, 87 Or. 392, 170 P. 727. In a case similar to the present one, that of Payne v. Hallgarth, 33 Or. 430, 54 P. 162, the grantor, during his last illness, desiring to make a disposition of his property, was advised by his physician and others to execute a deed and put it in the bank and "that if he got well he could destroy the deed, and if he did not get well it should be given to Jane (grantee)." After the deed was executed the grantor voluntarily gave it to the grantee without any understanding that it should be given back to him. The deed being handed back to the grantor, he put it under his pillow, and afterwards gave the deed to his brother, saying: "Here is the deed, under my pillow. I want you to take that, and take care of it until after my death, and then have it recorded." No other conditions to the delivery were imposed at that time. At page 440 of 33 Or., at page 165 of 54 Pac., Mr. Justice Wolverton states:

"As we have seen, the intention of the grantor should prevail, and it will determine the question of delivery. If he had pursued the course which Brownell, Honan, and Marsh say his conversation indicated that he intended to, it is plain a delivery would not have been accomplished, for the reason that he would have retained the power of recalling the instrument, and title could not have passed. But, if it ever was his intention to deposit the deed in the bank subject to his subsequent directions, he abandoned it; for he finally placed it in the hands of Charles Hallgarth, his brother and partner in business." The general rule is that it is essential to the validity of a deed that there should be a delivery of the instrument. In order to constitute a sufficient delivery of a deed the grantor must clearly manifest the intention that his deed shall presently become operative and effectual, that he shall lose control over it, and that the grantee is to become possessed of the estate. This rule rests upon the intention of the grantor, as manifested by the circumstances surrounding the transaction. The question of delivery must be determined from the facts of each particular case. It is essential to a valid delivery that there be some act or declaration from which an intention to deliver may be inferred, and this is true although the grantee is of very immature years. The parties must mutually assent to the deed. There can be no valid delivery without the knowledge or consent of the grantor, or acceptance of the grantee. 18 C.J. p. 196, §§ 94, 95; Fain v. Smith, 14 Or. 82, 12 P. 365, 58 Am. Rep. 281, note; Hoffmire v. Martin, 29 Or. 240, 45 P. 754; Tyler v. Cate, 29 Or. 515, 521, 45 P. 800; Burns v. Kennedy, 49 Or. 588, 90 P. 1102; De Bow v. Wollenberg, 52 Or. 404, 96 P. 536, 97 P. 717; Clark v. Clark, 56 Or. 218, 107 P. 23; Coleman v. Coleman, 216 Ill. 261, 268, 74 N.E. 701.

In Foote v. Lichty, 60 Or. 542, 120 P. 398, the syllabus reads:

"Whether the deposit of a deed in escrow for delivery on grantor's death passes title, depends on whether the grantor intends to and does retain control over it after such delivery."

In 18 C.J. p. 198, notes, we find the following:

"The question of the delivery of a deed or other written instrument is one of intention, and, to constitute a complete delivery thereof, the grantor must deal with it in a way evincing an intention to part presently and unconditionally with all control over it, and that it shall take effect according to its terms." Hooper v. Vanstrum, 92 Minn. 406, 409, 100 N.W. 229, 230.

"The true test of delivery is not as to what was actually said or done or what became of the conveyance, but whether or not the grantor intended to reserve to himself the locus p nitentiæ. If he did, there is no delivery and no present intention to divest himself of the title to the property." Gulf Red Cedar Co. v. Crenshaw, 169 Ala. 606, 613, 53 So. 812, 814.

To constitute a valid delivery of a deed, and thereby convey title to the land, it is essential there be an intention of the grantor to pass the deed from his possession and irrevocably beyond his dominion and control, and he must actually do so with the intent that it be taken by the grantee or some one for him. Both the intent and the act are necessary to a valid delivery. 18 C.J. p. 200, note; Allen v. Ayer, 26 Or. 589, 39 P. 1; Hill v. Kreiger, 250 Ill. 408, 413, 95 N.E. 468.

The authorities are practically in accord that, in order to ascertain what the intent of the grantor was in regard to such a deposit, the circumstances surrounding the transaction, as well as the direct proof, will be considered. Criswell v. Criswell, 138 Iowa, 607, 609, 116 N.W. 713.

8 R. C. L. p. 997, § 61, reads:

"Whether the delivery is such that it will take final effect at the grantor's death is largely a question of fact, to be determined from the particular circumstances of each case, and evidence may be received as to the instructions given by the grantor to the depositary, in order to determine the time of delivery and when the deed was to become effective. * * * Generally those deliveries have been held ineffectual where a fair construction of the grantor's instructions show he did not contemplate absolute release of control, or that the deposit of the deed was in view only of some impending event, as a surgical operation or the result of a present illness, or that his long-continued control of possession after execution of the deed negatives an intention to

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