Taft v. Taft
| Decision Date | 20 January 1886 |
| Court | Michigan Supreme Court |
| Parties | TAFT v. TAFT. |
Error to Macomb.
Crocker & Hutchins, for plaintiff and appellant.
George M. Crocker, for defendant.
Plaintiff as one of the children and heirs at law of Aden Taft deceased, brought ejectment for an undivided share of two parcels of land owned by his deceased father, which defendant, another son, claims as grantee. One parcel he claims under a deed made by Aden Taft, but held in his own control until death. The other he claims under a deed from said Aden Taft, alleged to have been deposited in escrow with Charles F. Mallory, who delivered it to defendant after his father's death. Upon the trial the whole controversy turned upon the validity of these two deeds. The court, as to the alleged escrow, told the jury that delivery to a third person, to be delivered to the grantee after grantor's death, is a sufficient delivery, and that if Aden Taft left the deed with Mr. Mallory, with instructions to deliver it to defendant, and he intended thereby to make the deed effectual, and it was so delivered, it was valid. He further charged that the right to recall the deed would make no difference, if it was not exercised, and that the fact that the deed was not to be delivered until defendant executed a note for his share of $1,000 would not affect it, if actually made; and, further, that a delay of several months in closing it would make no difference, and would not invalidate the deed. As to the other deed the court held that a deposit of it, with a note to be executed by defendant, after grantor's death, to his sister, in a locked bureau drawer, to which he kept the key in his pocket-book, in his pocket, and which so remained till after his death, informing grantee of it, and directing that, after his death, the deed should be taken on signing the note, all of which was assented to by defendant, and done, would pass the title, if it was so understood and intended by grantor.
There was no considerable dispute about the facts, which were substantially as follows, leaving out of sight some questions relating to what is claimed to have been an unauthorized admission of testimony, to which, for the present, no reference will be made: Aden Taft was a farmer, advanced in years, and living on the premises in dispute. Plaintiff was an elder son, who had not lived at home since his youth, and who had been helped in his education. Defendant and another brother, Emery Taft, had been in the neighborhood, and during his later years, had been of service to grantor in various ways. He appears to have desired to provide for them especially, as well as to make some provision for a married daughter. While his wife was living, in November, 1876, they joined in deeds conveying the principal parts of the land being east of a highway which traversed the farm, severally to defendant and Emery. Aden Taft also made a will. These deeds and the will he deposited with Charles F. Mallory, together with a note in blank, to be signed by Smith and Emery, providing for the payment, in specified proportions, by each of them, to their sister Mrs. Summers, of $1,000 in five installments, running with interest, to begin after his death. Each of the deeds was upon an expressed consideration of $3,000. All of these papers he gave to Mr. Mallory, with instructions verbally to keep until his death, and thereafter, on the signing of the notes, to deliver the deeds. After the death of Mrs. Taft, the grantor went to Mallory, and said he wanted the will, which he took away with him, and the contents of which do not appear. Mallory asked if he wanted the deeds. He said, "No;" but told him not to give them up to any other person. When the deeds were drawn up by Mr. Mallory, grantor was sick, and did not expect to get well, as he gave Mallory to understand. He died in May, 1879. In January, 1880, defendant and Emery signed the notes, and Mallory gave them the deeds. They had previously called at Mr. Mallory's in September, 1879, but there were some things on which they all desired to reflect and take counsel. As to the deeds which were retained, and not delivered to Mallory, they were made in April, 1878, about a year before the grantor's death. Mr. Vaughan, a notary, drew up the deeds under grantor's direction, and took the acknowledgment, his son being a witness with him. He also drew two notes of $100 each, payable to Mrs. Summers, one for each of the grantees to sign, and a note was folded in each deed. Aden Taft locked them up in his bureau drawer, of which he kept the key in his pocket-book on his person, and told his daughter, Mrs. Summers, that when he died she should open the drawer, and, on the execution of the notes, deliver the deeds to grantees. This was done after his death, the key being found as he had explained. The testimony all agrees that he asserted his intention to keep the control of all his property till his death, and that he referred to the mischief that had been done by old persons conveying away their property while they lived, and that he said that unless the notes were made the grantees should take nothing.
The questions presented on the merits are dependent on whether the deed left with Mallory, or the deed left in Aden Taft's bureau drawer, and subsequently obtained by defendant, operated to vest in him a legal estate in either or both of the parcels of land in dispute. The argument necessarily embraced a discussion of two different classes of conveyances, one where kept by the grantor in his own possession until death, and one where placed in the hands of a third person to be delivered after death; and beyond this is involved the effect of the condition requiring the notes to be given after death, and before the deeds should be given to the grantees.
The first question is whether the deed retained by Aden Taft can be regarded as operative. The authorities are all agreed that no deed can be valid without delivery by the grantor. It must be made operative by his act while he is able to act. There are cases where deeds and mortgages found to have been in custody of the grantor at his death have been held valid, but this has been done on proof, or facts amounting to proof, that he has made an effectual delivery and become a mere custodian of the deed thereafter. In every case that we have discovered the question has been whether the deed had been delivered. No doubt, in some cases presumptions may have been stronger than in others, but the fact has been considered as absolutely essential; and, where the grantor has retained control of the title, it has been regarded as conclusive. One reason for this is found in the doctrine which, both under the statute of frauds, and independent of it, is equally clear, that the purport of a deed cannot be changed by parol, and that no condition or reservation contrary to its terms is valid. A deed of conveyance in present terms is inconsistent with the retention of a life-estate, and, from the time when the deed is delivered as a conveyance, the whole title goes with it, and it becomes irrevocable. Some difficulty was apparently raised about delivery, where the grantee was ignorant of the transfer; but it has long been settled that a delivery to any third person, intended to make the conveyance operative, is a legal delivery. Doe v. Knight, 5 Barn. & C. 671; Hosley v. Holmes, 27 Mich. 416, and notes; Souverbye v. Arden, 1 Johns.Ch. 240. But a delivery to a third person, or even to the grantee, may be made for other purposes than to give the deed effect, (Johnson v. Baker, 4 Barn. & Ald. 440,) and the mere fact that it is put into their hands, if not as a completed transfer, will not bind the grantor. Thus, in Jackson v. Phipps, 12 Johns. 418, and in Austin v. Register, 41 Mich. 723, the deposit of a deed with a public officer, but not for record, and with no purpose of giving the deed effect, was held no such delivery. In Prutsman v. Baker, 30 Wis. 644, a deed, in a third person's hands, subject to the grantor's orders, was held not delivered. And cases not unfrequently arise where a deed is handed to a grantee for inspection by himself or his counsel, or for some temporary purpose, where there is no completion of the transfer. Johnson v. Baker, supra; Gilbert v. North American Fire Ins. Co., 23 Wend. 43. In Jackson v. Dunlap, 1 Johns.Cas. 114, a deed duly executed, but retained by the grantor until the land should be paid for, and he dying before payment, was held inoperative. In Stilwell v. Hubbard, 20 Wend. 44, a deed made by the grantor, and retained by him, with the distinct understanding that it would become operative at his death, and found among his papers with a will which it was designed to alter, was held void for want of delivery during life. In Fisher v. Hall, 41 N.Y. 416, it was held, after a careful discussion, that where a deed was retained in the grantor's custody, there must be unequivocal proof of a legal delivery, intended to be operative. In Wellborn v. Weaver, 17 Ga. 257, where a deed was intrusted to grantor's agent, to be delivered after death, it was also held that there could be no continuance of agency after death, and that there was no valid delivery. Where the grantor has by will or otherwise asserted that an actual delivery has taken place, such deeds have been maintained, as they have been in some cases where there was a previously recognized obligation to make them, and they purport to have been made in execution of it. Exton v. Scott, 6 Sim. 31, is an example of that kind. But a retention of control of the title has always been held inconsistent with the validity of a deed held in custody. Naldred v. Gilham, 1 P.Wms. 577; Uniacke v. Giles, 2 Moll. 257; Cecil v. Butcher, 2...
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