Payne v. Payne

• Decision Date: 14 February 1928
• Docket Number: No. 37.,37.
• Citation: 241 Mich. 547,217 N.W. 756
• Parties: PAYNE v. PAYNE et al.
• Court: Michigan Supreme Court

241 Mich. 547

217 N.W. 756

PAYNE

v.PAYNE et al.

No. 37.

Supreme Court of Michigan.

Feb. 14, 1928.

Appeal from Circuit Court, Newaygo County, in Chancery; Joseph Barton, Judge.

Suit by Allen E. Payne against Elijah L. Payne and another. Decree for plaintiff, and defendants appeal. Reversed and rendered.

Argued before the Entire Bench. Corwin, Norcross & Cook, of Grand Rapids, for appellants.

Wm. J. Branstrom, of Fremont, for appellee.

NORTH, J.

For some time prior to March 28, 1919, Elijah L. Payne and his wife, Elizabeth S. Payne, owned as tenants by entirety certain lands located on the S. E. 1/4 of section 10 of Lilly township, Newaygo county, Mich. On that date they executed a deed of substantially 34 acres of this land, in which deed their only son Allen E. Payne, the plaintiff herein, was named as grantee. They deeded the remaining portion to their only daughter, Vernnie Almeda Wilson. The plaintiff was present when these deeds were prepared by the scrivener and signed by the grantors. The daughter was not present. As soon as the deeds were signed they were given by the scrivener to the father, Elijah L. Payne. The plaintiff testified on direct examination:

‘They (his parents) made the statement that they would place those (the deeds) in escrow for keeping until their death, that they would have no more to do with it and so it would be settled while they had health and presence of mind to do so. They signed the deeds. After the deeds were signed my father took them and supposed to be delivered here to White Cloud to be left for safe-keeping.'

They stated:

They would have ‘nothing more to do with the property, deeded equally between us, so it would save probating and administrating; just simply when they were done with it it would drop into our hands without any trouble.'

The father retained possession of the deeds until February 16, 1920, at which time, without the knowledge of any of the other parties, he placed them in the possession of Mr. Charles E. Phillips, who was then register of deeds of Newaygo county. It is not claimed the deeds were left for the purpose of being recorded at that time. Mr. Phillips made a memorandum in writing, which is Defendants' Exhibit 1, and which is as follows:

‘White Cloud, Mich., Feb. 16, 1920.

‘Received of Elijah L. Payne, two warranty deeds executed by himself and wife, Elizabeth S. Payne, to be held in escrow, subject to the order of either, but at the death of both to be delivered to the grantees named in each deed, respectively.

‘Chas. E. Phillips, Register of Deeds.'

It does not appear in the record very conclusively whether Mr. Phillips delivered this paper to Mr. Payne as a receipt for the deeds, or whether he retained it as a memorandum incident to his possession of the deeds; but it is probable he retained it.

Elizabeth S. Payne died in October, 1922. On December 7, 1922, Elijah L. Payne and his daughter went to White Cloud and received from Mr. Charles Phillips the two deeds previously deposited with him. The one running to the daughter was delivered to her by her father, and by her left for record with the register of deeds. The other deed running to the plaintiff was retained by the father and later destroyed by him. On the 16th day of April, 1926, Elijah L. Payne executed and delivered to his daughter, Vernnie Almeda Wilson, a deed of about 14 acres of the land included in the deed of March 28, 1919, in which the plaintiff had been named as grantee. This deed to the daughter was recorded June 2, 1926.

In his bill of complaint, the plaintiff alleges he is the owner in fee simple of the N. 1/2 of the S. 1/2 of the S. E. 1/4 of said section 10, containing 40 acres, more or less, claiming title thereto through the deed signed by his parents, which deed, he alleges, was ‘left in escrow with the register of deeds in the year 1919.’ He has made his father and sister defendants, and charges that, ‘conspiring together, they had caused one of the deeds left in escrow, viz., the deed to Vernnie Almeda Wilson to be recorded, and the other deed left in escrow conveying the premises to the plaintiff to be destroyed’; and also that the father has sought by the deed of April 16, 1926, to convey to the defendant Mrs. Wilson land theretofore deeded to plaintiff. He prays that he be decreed to be the owner of the land described in the deed dated March 28, 1919, that the deed from the father to Mrs. Wilson of the 14 acres be declared null and void, and that the defendants be restrained from interfering with his possession. The relief sought was granted in the circuit, and the defendants have appealed.

The major question in this case is this: Was there a valid delivery of the deed through which plaintiff claims title? Plaintiff does not claim delivery at the time the deed was executed; but he does claim that there was a valid delivery in escrow to Mr. Phillips, and that in any event the defendants, because they knew of his being in possession of the land and...