Renehan v. McAvoy

• Decision Date: 24 June 1911
• Citation: 81 A. 586,116 Md. 356
• Parties: RENEHAN et al. v. McAVOY et al.
• Court: Maryland Court of Appeals

81 A. 586

116 Md. 356

RENEHAN et al. v. McAVOY et al.

Court of Appeals of Maryland

June 24, 1911

Supplemental Opinion, November 21, 1911.

Appeal from Circuit Court, Howard County, in Equity; Wm. Henry Forsythe, Jr., Judge.

Suit by John Renehan and another against Joseph McAvoy and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

E Allan Sauerwein, Jr., and Joseph L. Donovan, for appellants.

John G Rogers, for appellees.

Argued before BOYD, C.J., and BRISCOE, PATTISON, URNER, and STOCKBRIDGE, JJ.

BRISCOE J.

The controversy in this case arises over the validity of a certain paper writing, purporting to be a deed, dated the 10th day of March, 1902, and executed by Hugh McAvoy, late of Howard county, Md., in his lifetime, and delivered to the clerk of the circuit court for Howard county for record after his death by the register of wills of that county, in whose custody it had been left, by the grantor to be kept until his death, and then to be placed upon record.

The deed, as set out, in the record, is as follows: "This deed made this tenth day of March, 1902 by me Hugh McAvoy of Howard county, Maryland. Witnesseth, that in consideration of five dollars and other good considerations me thereunto moving I the said Hugh McAvoy do grant unto Joseph McAvoy and Elizabeth McAvoy, during their respective lives and no longer subject, however, to my life estate therein, all that farm situate, lying and being in Howard county, and described as follows, that is to say: the farm upon which I now reside situated in the Third Election District of Howard County which my father, the late Francis McAvoy devised to me, and all the additions which I have made thereto by purchase or otherwise, and I charge said farm with ten dollars for Masses to be said for the repose of my soul and those of my family; and after my death and the deaths of both my brother Joseph McAvoy, and my sister Elizabeth McAvoy and the charge aforesaid shall have been paid, I give and grant my said farm and all the additions thereto as aforesaid to my nephew Allie McAvoy Renehan for and during his natural life and after his death to the brothers and sisters of the said Allie McAvoy Renehan equally share and share alike, but if any or all of said Allie McAvoy Renehan's brothers and sisters shall have departed this life during the life time of said Allie McAvoy Renehan, then I give and grant my said farm aforesaid to the descendants or descendant then living of said departed brother or sister per stirpes and not per capita, but should the said Allie McAvoy Renehan have children or the descendant or descendants of any deceased child or children living at his, said Allie's death, then I give to said child or children or the descendants of any deceased child or children living at his death the farm aforesaid per stirpes and not per capita.

"And I give, bargain and sell all of my personal property owned by me at the time of my death to the parties aforesaid upon the same terms and conditions as I have hereby given my real estate.

"And I do further charge my real estate given as aforesaid with the further sum of four hundred dollars to be paid by Allie McA. Renehan to my niece Annie Renehan wife of my nephew William Renehan at the death of the last of said life tenants Joseph and Elizabeth McAvoy.

"Witness my hand and seal.

"Hugh McAvoy. [Seal.]

"Witness: John G. Rogers."

The deed, it will appear, was executed and duly acknowledged by the grantor on the 10th day of March, 1902, before Howard D. Dunkel, a justice of the peace of the state in and for Howard county, and was recorded among the land records of that county on the 2d day of January, 1904, after the death of Mr. McAvoy.

It is admitted that at the date of the execution of the deed the grantor was capable of making a valid deed or contract, that he held absolute title to the property, that no rights of creditors, or other persons having liens, are involved, and the deed was properly executed under the laws of Maryland to pass real estate. But it is earnestly insisted upon the part of the appellants, certain of his heirs at law, that the deed is void, because it was never delivered, so as to perfect the instrument as a valid deed, and the grantees took no title to the property mentioned therein. The circuit court of Howard county upon hearing of the case, upon bill, answer, and proof, held the deed to be a valid instrument to convey real estate, and dismissed the plaintiffs' bill for a decree to vacate and annul the deed, and for a sale of the property for the purposes of partition among the heirs at law of the grantor. And it is from this order thus passed that this appeal has been taken.

It is clear upon all the authorities that delivery and acceptance is essential to the validity of every deed, and what constitutes a sufficient delivery, to transfer and vest the title in the grantee, or to make it operative and effectual, as a deed depends largely upon the facts and circumstances of each particular case. The general and essential requisites to the validity of a deed under the facts and circumstances as indicated in this case have been settled by numerous and well-considered authorities. In Duer v. James, 42 Md. 496, affirmed by this court in Hearn v. Purnell, 110 Md. 465, 72 A. 909, it is said, to constitute a delivery of a deed, the grantor must do some act putting it beyond his power to revoke. There can be no delivery so long as the deed is within his control and subject to his authority. In the language of the Supreme Court in Younge v. Guilbeau, 3 Wall. 636, 18 L.Ed. 262, the grantor must part with the possession of the deed or the right to retain it. In Clark v. Creswell, 112 Md. 342, 76 A. 580, it was held there is a consummated delivery when the instrument has passed from the grantor, without right of recall, to the grantee or to some third person for his use.

The test of delivery is the relinquishment by the grantor of the custody or the control of the deed. When he has formally executed and acknowledged it, and delivered it unconditionally to the grantee or one acting for him, the conveyance is completed and the title has passed.

It is also settled by the great weight of authority in this state and in other jurisdictions that the grantor must part with all dominion and control over the deed at the time of its delivery to a third person, in order to make such act a sufficient delivery in order to divest the title, and the delivery to the third person must be for the use and benefit of the grantee. Carey v. Dennis, 13 Md. 18; Owens v. Miller, 29 Md. 144; Leppoc v. Union Bank, 32 Md. 136; Younge v. Guilbeau, 3 Wall. 636, 18 L.Ed. 262; Porter v. Woodhouse, 59 Conn. 568, 22 A. 299, 13 L. R. A. 64, 21 Am. St. Rep. 131; Note to Munro v. Bowles (Ill.) 54 L. R. A. 865.

In the case before us the deed after its execution by the grantor was placed in the hands of Judge John G. Rogers of the Howard county bar, with certain directions, as testified to by him. The testimony of Judge Rogers, as contained in the record, is as follows: "Mr. Hugh McAvoy came into my office on March 10, 1902, and said that he wanted a paper prepared. I asked him what kind of a paper he wanted prepared, and he said that he wanted to make his property over to Allie. I asked him what provisions he wanted in the paper, and at his direction I prepared that paper the deed. He signed it, and I witnessed it. Then I told him to take it down to Mr. Howard Dunkel's and acknowledge it. He returned with the paper, and gave it to me. I then asked him what he wanted done with it, and he said that he wanted me to keep it for him; at his death, to have it put upon record. I asked him why he did not have it put on record now, but he said that he had reasons for not doing so. I did not inquire into those reasons. He handed me the paper, and I asked him: 'You have delivered this paper to me to be put on record in case of your death?' And he said: 'Yes.' Then he went away. I took the paper and put it in a pigeon hole, and there it remained something over a year. Afterwards he came into my office, and said that he wanted the paper. I asked him what he wanted with it, as he had put it into my hands to be put upon record in case of his death. He said that he did not want to change it, but that it had occurred to him that something might happen to me, and then no one would know where the paper was. He said that he thought he had better take it and deliver it to the register of wills for safe-keeping. I said that this did not make any difference to me. Then he took it away with him." It is apparent, we think, according to all the authorities, that the placing of the deed with Judge Rogers, under the facts of the case, was not an effective and valid delivery. It was delivered to Judge Rogers, as stated by the grantor, "to be kept for him, at his death to be put upon record." It was subsequently recalled, surrendered to the grantor, and delivered by the grantor to the register of wills for Howard county. The evidence shows beyond all question that from what the grantor did and said he simply intended to constitute Judge Rogers as his agent for the custody of the paper, and he cannot, therefore, be treated in any sense as an agent or depository for the use and benefit of the grantees.

It is established by the overwhelming weight of authority that it is absolutely indispensable, in order to constitute a sufficient delivery, that the grantor shall part with control over the deed, and shall not retain a right to reclaim it. Clark v. Creswell, supra: Brown v. Brown, 66 Me 316; Woodward v. Camp, 22 Conn. 457; Ball v. Foreman, 37 Ohio St. 132; Hawes v. Hawes, 177 Ill. 409, 53 N.E. 78; Hammerslough v. Cheatham, 84...