MOORE
C.J.
This is
an appeal from a decree granting the relief for which
complainant prayed in his bill of complaint. The case was
tried in open court. The trial judge filed a very carefully
prepared opinion, which states the questions involved so
clearly that we quote a portion of it:
'Complainant
prays that two deeds, now recorded in the office of the
register of deeds of Calhoun county in Liber 177 of Deeds
at pages 104 and 105, respectively, be annulled, vacated,
canceled, and set aside, and that defendants be required to
surrender the same to the register of this court for
cancellation, * * * and that the cloud caused by said deeds
and the records thereof upon complainant's title to the
premises described in said bills of complaint be removed,
and complainant's title thereto quieted. Complainant in
this case is the father of the two defendants, and the
deeds in question were voluntarily made by himself and his
then living wife, Candice A. Roup, on the 6th day of
October, 1899, while they were residents of the county of
Isabella, in this state. Defendants had always lived at
home with their father and mother, and were living with
them at the time the deeds in question were executed. Wayne
A. Roup was a minor son, and Waylie A. Roup about 30 years
of age at that time. Complainant claims that, in order to
avoid the expense of administration upon his estate after
the death of himself and his wife, they had the deeds
prepared, and executed them, intending to keep them in
their possession, and after their deaths defendants were to
take the deeds and record them, pay their sister, Myrtie
Henry, $500, thus settling the estate without the aid and
procedure of the probate court. Complainant also claims
that after the execution of the deeds they were brought to
the home in Isabella county by himself and his wife, and
were put into a paper shoe box, which was kept in his
bedroom in or upon a stand, in which shoe box he kept all
his private papers; that the deeds remained in this box
until after he removed his family and goods to Calhoun
county in the fall of 1899, when he went into possession of
the farm in question, and lived there with
his family just as they had always lived in Isabella
county. After the removal of the family to the Calhoun
county farm, the paper shoe box containing the deeds in
question and other papers, such as insurance policies and
pension papers, were put in the bureau drawer in
complainant's bedroom, and there remained until he
missed them from the shoe box in June, 1901; that his wife,
Candice A. Roup, died October 28, 1900, after a short
illness, and that the last time complainant saw the deeds
was in March, 1901. Complainant claims that after he missed
them he immediately made inquiries in regard to their
whereabouts, and that he asked defendants if they had taken
them, but that they disclaimed any knowledge of the
disappearance. Complainant alleges that the deeds were
never delivered to defendants, and that he was at all times
in the actual possession and control of them; that he did
not owe either of the defendants for labor or otherwise,
and never made any agreement with them, or either of them,
to pay them for any labor by conveying the lands in
question to them. It is further claimed that complainant
with his wife, Candice, always used and occupied the lands
and home as theirs after the execution of the deeds in
question, and improved the property, and gave and executed
a mortgage for $600 on the same; and that defendants never
had any financial interest in said farm. This states
sufficiently the claim of complainant to raise every
question which will be necessary for this trial court to
consider.
'Defendants
set up and claim that while they worked and labored at home
with their father and mother that they put into the farm in
Isabella county all they earned at home and abroad, and that
complainant had agreed to pay Waylie A. Roup $20 per month if
he would remain at home and assist in working the farm with
his brother, Wayne, and care for complainant and his wife
during their lifetime; but that when complainant bought the
farm in Calhoun county, he, together with his wife, Candice,
agreed to and
did make the deeds to them in payment for their labor, etc.;
that on the day the papers were executed they were delivered
to defendants by the mother, and in the presence of
complainant, and were told by the mother in his presence and
hearing what the papers were, and they received them from
her, and read them, and each, under the direction of their
mother, put them in the paper shoe box in complainant's
bedroom, with the other papers contained
therein. Defendants claim that this box was a kind of family
receptacle for the keeping and preservind of valuable papers
for all the family, and that it was used by them all for that
purpose. Defendants further claim that while the mother was
sick, and just a few days before her death, she called her
oldest, son, Waylie, to her bedside, and told him to take the
deeds out of the box and have them recorded; that in March,
1901, after Candice A. Roup died, the defendant Waylie A.
Roup took the deeds out of the box, and gave them to his
sister Myrtie Henry, who kept them until the 30th day of
September, 1901, and then had them recorded. There is no
claim that complainant knew who took the deeds away until
after they were recorded. On the other hand, it is claimed
complainant was searching and making inquiries for them from
the time they were missed until he learned what had become of
them. There is no claim or pretense that he was consenting or
knew of the removal of the deeds.
'The
principal question in this case, and the one to be first
determined by the court, is, were the deeds delivered by the
grantors to the grantees, the defendants in this case, at the
time they were executed and brought to their home in Isabella
county on October 6, 1899? The delivery of a deed is the
essential act on the part of the grantor to give life to the
transaction, or to give it any force whatever. In addition to
this, of course, must be acceptance by the grantees. There is
no question but that the deeds were executed by complainant
and his wife, Candice, to the defendants, as grantees, and
that they were brought home and read by defendants, and at
the suggestion of the mother were put into the paper box kept
by complainant in his bedroom. Taking defendants' theory
and testimony of what occurred in the home on the evening of
October 6, 1899, it would seem that the mother was the moving
spirit in what transpired there. Defendant Wayne A. Roup
testified: 'Q. Do you remember the occasion of your
father and mother getting these deeds, Exhibits A and B, and
bringing them home? A. Yes, sir. Q. What time was it they
brought them home--what time in the evening? A. Well, it was
after dark when I saw them first. I could not say what time.
Q. What occurred when they came in? Just go on and tell the court what occurred when they came in with the
papers, or when they came into the house. A. We had been at
work either husking or cutting corn at the time, and when we
came from work it was late, because we were getting ready to
move down here, and we worked late. My brother would come up
(Waylie) and do the chores--we had nine cows to milk--and he
would come up and do the chores, and I would work later in
the field. Some nights when it was moonlight I would work
until 8 o'clock. And when i come up mother brought the
deed. Q. (interrupting). What did she say to you? A. She
said, 'Boys, here is your deeds,' and handed one to
me and one to my brother. Q. What did you do with them? A. I
read them over, and put them in the box that he has been
telling about. Q. Who put them in? A. Us boys. * * * Q. Now
you may state how far your mother was, or your father,
rather, when your mother handed one of these papers to you
and the other to Waylie and said, 'Boys, here are your
deeds.' How far away were you at that time? A. I should
think about six or eight feet. Q. Did he say anything? A. No,
I don't remember as he said anything. Q. What was said,
if anything, about when they were to be recorded, or anything
of that kind, by your father and mother, at that time, or by
any of you? A. Well, I don't know as there was anything
said just then when they were to be recorded. * * * Q. Was
there any statement that you should not put them on record?
A. No, sir. Q. By the Court: Why did you put them in the box?
Why did you not take them down for record at once? A. As long
as my mother was living they were safe without
recording.' Upon cross-examination the same witness
testified: 'Q. Who did the talking? A. My mother. Q. Did
you say anything, or make any reply? A. No, I don't know
as I did. Q. Did Waylie make any reply? A. No. They were
handed to us, and we read them over. Q. Did
you read them? A. Yes. Q. Then you gave them back to your
parents, your father and mother? A. We put them in that box.
Q. Who did? A. We did, us boys. * * * Q. Where was this box?
A. Well, I don't just remember now. It was moved around
from place to place. Q. Where was your mother sitting when
you put them in that box? A. She was sitting in the kitchen,
where she was when they were handed to us. Q. Where was your
father sitting when they were put in there? A. He was in
there with us, I think. Q. Where was this box when they were
put in it? A. I think it was in their...
