Stevens v. Castel
| Citation | 29 N.W. 828,63 Mich. 111 |
| Court | Supreme Court of Michigan |
| Decision Date | 14 October 1886 |
| Parties | STEVENS v. CASTEL. |
Error to Montcalm.
Taggart & Denison and F.A. Miller, for plaintiff and appellant.
Ellsworth & Lewis, for defendant.
This is an action in ejectment, brought to recover 160 acres of land in the township of Bushnell, county of Montcalm. The suit was commenced May 25, 1867. The case was tried in the Montcalm circuit, December, 1885, before a jury, at which trial the defendant had verdict and judgment in his favor.
The plaintiff brings error, and insists, in the outset, that upon the testimony of the defendant himself, the judgment should have been in favor of the plaintiff. The main case hangs upon the question of the delivery of a deed or deeds executed by defendant, February 10, 1851. This question was submitted by the circuit judge, Hon. VERNON H. SMITH, to the jury, and I think rightly.
The plaintiff's counsel argue that the undisputed facts, as related by the defendant himself conclusively establishes in law a delivery, and the jury should have been directed to find for plaintiff. It will therefore be necessary to examine the evidence of defendant as to the circumstances of the case.
In the fall of 1850 the defendant purchased the lands, then wholly wild and unimproved. In February, 1851, having no home, but a wife and children, he commenced to clear off a building spot upon the premises, and moved lumber and other materials thereon, for a house in which to live and occupy the lands as a homestead. After he had done this, he executed a deed of the premises, his wife not joining therein, to a hired man, unmarried, one Solomon Mullinex, who, on the same day, executed a deed of the same lands, running to Betsey A. Castel, the wife of the defendant. It is under these deeds, through mesne conveyances, that plaintiff claims title. May 11, 1866, Betsey A. Castel, who had separated from and was living apart from her husband, conveyed the premises, by warranty deed, to Abram Shear, and Abram Shear and wife quitclaimed to plaintiff, May 16, 1866. It is admitted that no consideration passed from Mullinex to defendant, or from the wife to Mullinex or the defendant, for or on account of these conveyances.
The wife's testimony as to the purpose of, and as to the delivery of, the deeds, she being a witness on the trial for plaintiff, who is her brother, differs materially from that of the defendant, but, for the purposes of the case as it now stands, we have only to deal with his version of the transaction. He claims that the deeds were never delivered, and were never intended to be delivered, either by himself or his wife. His story is substantially as follows: He intended to make the land his future home. He was poor, and had nothing but the land, which he did not wish to lose. He had some debts back where he moved from to this land, and, although he meant to pay them, he wanted time in which to do so, and not lose his place in the mean time. He therefore made the deed to Mullinex, and had him execute the deed to his wife, for the purpose of clouding the title, so that his creditors would not levy upon it. He went to the house of Edwin Stevens, a brother of his wife, and drew the deeds himself; executed the one to Mullinex, and put it in his pocket; then went and found Mullinex, called him into the house, and had him execute the other. Mullinex never had possession of the deed from the defendant to him, and never saw it. Defendant kept the two deeds in his pocket for a few days, and then put them on a beam in the saw-mill where he was working. They remained there until in October, 1851. In that month, being supervisor of the township, he went to the county-seat, then at Greenville, and handed the deeds to the register of deeds for record; saying to him that they did not amount to anything, but that he might put them on record, and not to deliver them to any one but himself. After the record, he took the deeds, and put them in a box, among his private papers, where they have ever since remained. He never showed the deeds to his wife, and does not know that she ever saw them. They were not locked up, however, and she could have had access to them, as she did to the other things in the house. She knew of the making of the deeds, but was not present when they were executed. She asked him once to record them, and told him she would make him a coat if he would do so. After they were recorded, he told her of the record. She left him before she deeded to Shear, and has ever since lived apart from him. She did not take the deeds, or offer to do so, when she went away. Castel has resided on the premises ever since 1851, and now has 100 acres improved. At the time he recorded the deeds he had built a house upon the premises, and was living in the same, and had hired some 40 acres to be chopped. Has paid the taxes assessed against the property every year but one.
It is claimed that the recording of the deeds is conclusive evidence of their delivery, and cases in other states are cited to sustain this proposition. Other cases are found holding to the contrary. Parker v. Hill, 8 Metc. 447; Hawes v. Pike, 105 Mass. 560; Patterson v. Snell, 67 Me. 559; Jones v. Bush, 4 Har- (Del.) 1; Maynard v. Maynard, 10 Mass. 456; Harrison v. Phillips, 12 Mass. 456; Walsh v. Mutual Fire Ins. Co., 54 Vt. 351; Elsey v. Metcalf, 1 Denio, 323; Ford v. James, 4 Keyes, 300, 315; Kingsbury v. Burnside, 58 Ill. 310. These cases held uniformly that the mere act of recording, unaccompanied by any act or word evincing an intention to deliver the deed, raises no absolute presumption. If accompanied by a declaration against such intention, the act raises no presumption whatever, and the appearance of the deed upon record does not operate as a delivery, nor supersede the necessity of proof of delivery. Some of the cases go so far as to hold that the record of the deed, standing alone, raises no presumption whatever as to delivery.
The very essence of the delivery is the intention of the parties, (Bryan v. Walsh, 2 Gilman, 557; Grinnell v. Cockerill, 79 Ill. 79;) and the better doctrine, in my opinion, is that of our own court, that the recording raises a presumption of delivery, to be explained or rebutted, however, by the intention of the party recording the deed.
It has been said in our own state that, under our recording laws, the executing, acknowledging, and recording of a deed is presumably a delivery, unless some facts are shown against such presumption. Patrick v. Howard, 47 Mich. 40-45; S.C. 10 N.W. 71. And it has been also held a sufficient delivery when the grantor, intending thereby to give it effect, left the deed with a conveyancer, to be afterwards delivered. Thatcher v. St. Andrews Church, 37 Mich. 264. Justice MARSTON in that case said:
If this be good law, and I think it is, it necessarily follows that any act, presumptively a delivery, will not be a delivery, if the intent to make it such is wanting, or expressly negatived by the acts or words of the grantor. In the case before us the only act looking towards a delivery is the recording of the deeds, and the effect of such recording...
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