Thatcher v. Wardens & Vestrymen of St. Andrew's Church

• Citation: 37 Mich. 264
• Parties: Fanny E. Thatcher and Erastus Thatcher v. The Wardens and Vestrymen of St. Andrew's Church of Ann Arbor
• Decision Date: 09 October 1877
• Court: Supreme Court of Michigan

37 Mich. 264

Fanny E. Thatcher and Erastus Thatcher v. The Wardens and Vestrymen of St. Andrew's Church of Ann Arbor

Supreme Court of Michigan

October 9, 1877

Argued June 8, 1877 [Syllabus Material]

Error to Washtenaw. (Huntington, J.)

Ejectment. Defendants bring error. Affirmed.

Judgment affirmed with costs and the record remanded.

A McReynolds and E. Thatcher for plaintiffs in error. The general policy of American law tends to the abrogation of rules against champerty and maintenance. Maybin v. Raymond 4 Amer. Law Times 21; How. Stat. § 9004 overruling Backus v. Byron 4 Mich. 535. The acceptance by trustees of a duty imposed cannot be presumed, but must be proved. Johnson v. Farley 45 N.H. 505; Roosevelt v. Carow 6 Barb. 190; Woodbury v. Fisher 20 Ind. 387. Delivery after the grantor's death is not lawful. Jackson v. Leek 12 Wend. 105; Spencer v. Carr 45 N.Y. 406; Jackson v. Phipps 12 Johns. 418. A trust-deed is void if the power of alienation can be suspended by it for more than two lives, which must be designated by the deed. Coster v. Lorillard 14 Wend. 265; Tucker v. Tucker 1 Seld. 408; Amory v. Lord 5 Seld. 403; Hawley v. James 16 Wend. 61; Thompson v. Clendening 1 Sandf. Ch. 387; Yates v. Yates 9 Barb. 324; Hone v. Van Schaick 20 Wend. 564; McSorley v. Wilson 4 Sandf. Ch. 515; Jennings v. Jennings 7 N.Y. 547; King v. Rundle 15 Barb. 139.

Alpheus Felch and Beakes & Cutcheon (on brief) for defendants in error. An attorney must not purchase from his client, pendente lite, the subject matter of the suit of which he has charge, even in his wife's name. Hall v. Hallet 1 Cox Ch. 140; Wood v. Downes 18 Ves. 120; Simp on v. Lamb 7 El. & Bl. 84; Gray v. Emmons 7 Mich. 533; Arden v. Patterson 5 Johns. Ch. 44; Berrien v. McLane 1 Hoffman's Ch. 421; Welles v. Middleton 1 Cox Ch. 112; Merritt v. Lambert 10 Paige 352; Wallis v. Loubat 2 Den. 608; Matter of Bleakley 5 Paige 311; Thurslon v. Percival 1 Pick. 415; Lathrop v. Amherst Bank 9 Met. 491; Wright v. Proud 13 Ves. 138; Henry v. Raiman 25 Penn. St. 354. A conveyance to one's attorney is presumptively bad, until the latter shows the contrary. Edwards v. Meyrick 2 Hare 68; Howell v. Ransom 11 Paige 540; 1 Perry on Trusts § 202. Comp. L. § 7427, is copied from Sec. 103 of the New York code of procedure which is held not to have changed the rule against purchasing from clients. Barry v. Whitney 3 Sandf. S.Ct. 696; Anon. 16 Abb. Pr. (N. S) 430. See Stevens v. Adams 23 Wend. 57: 26 Wend. 451; Scott v. Elmendorf 12 Johns. 316; Carpenter v. Sixth Ave. R. R. Co. 1 Amer. Law Reg. (N. S.) 417. Delivery of a deed to a third person, intending thereby to make it valid as a conveyance, and with authority in the holder to keep it for and deliver it to the grantee, is sufficient. 2 Washb. on Real Prop. 606, 611; Turner v. Whidden 22 Me. 121; Stewart v. Weed 11 Ind. 94; Guard v. Bradley 7 Ind. 600; Phillips v. Houston 5 Jones (Law) 302; Mitchell v. Ryan 3 Ohio St. 377; Adams v. Adams 21 Wall. 185; Hosley v. Holmes 27 Mich. 416; Ellis v. Secor 31 Mich. 185; Wallace v. Harris 32 Mich. 380. The absolute power of alienation is not suspended except where there is a contingent remainder, and the contingency has not occurred. Kane v. Gott 24 Wend. 641; Gott v. Cook 7 Paige 521. No particular form of words is needed to create a power of sale; any words will do it that impose a duty on a trustee which he cannot execute without a sale (2 Perry on Trusts § 766; Mandlebaum v. McDonell 29 Mich. 78; Going v. Emery 16 Pick. 107; Savings Bank v. Ross 11 Allen 442; Tait v. Lathbury L. R. 1 Eq. 174; Hamilton v. Buckmaster L. R. 3 Eq. 323; Rankin v. Rankin 36 Ill. 293; Stall v. Cincinnati 16 Ohio St. 169; Hill on Trustees 342, 471; 2 Spence's Eq. Jur. 366) such as an assignment in trust to pay debts. Wood v. White 4 Mylne & Craig 481.

OPINION

Marston, J.

Defendants in error brought an action of ejectment to recover possession of certain lots situate in Ann Arbor. From the facts found by the court the parties claimed title to this property through Minerva E. Mundy who was owner thereof in fee simple on the 20th day of June, 1862. Upon that day she executed a trust deed of this property under which the plaintiff below claimed title; to this deed a number of objections were raised. It also appears that Mrs. Mundy died in April, 1871, and that in October, 1873, her only surviving heirs conveyed the premises in question by warranty deed to Fanny E. Thatcher, the wife of Erastus Thatcher; that Erastus Thatcher then was an attorney at law, and was at the time of such conveyance the solicitor for said heirs in a cause then pending in court. This conveyance plaintiffs below attacked as being champertous, against public policy and therefore absolutely void; that May 13th, 1875, said heirs, by quit-claim deed, conveyed the premises in question to plaintiffs below. This sufficiently shows the claim of title made by each party. If the trust deed was and is a valid instrument, then plaintiffs below would be entitled to recover. Even if invalid they still claim they were entitled to recover, if the deed from the heirs to Mrs. Thatcher can be held void, and upon this theory they recovered in the court below. The argument took a very wide range and the several questions raised were discussed in this Court thoroughly and exhaustively. We have considered it proper to first examine the trust deed of June 20th, 1862, because if we find that a valid, legal instrument, it will render wholly unnecessary any examination of the other questions discussed.

We will consider the objections to this trust deed in their regular order.

I. That the facts and circumstances, with reference to delivery and acceptance set forth in detail in the finding, do not show a lawful delivery or acceptance. Reference was made as to the insufficiency of the evidence to sustain the findings, but this question we cannot examine into upon this record. We must take the finding of facts by the court as correct, and dispose of the questions here raised upon that assumption. It appears from the finding of the court that upon executing this deed Mrs. Mundy left it with Mr. Morgan, the attorney who had prepared it, where it remained until after her death, when he left it at the register's office for record at the request of one of the trustees therein named; that during this time, between its execution and her death, she remained in possession of the property, exercising exclusive control over the same, and in March, 1871, she conveyed a part of these premises to Wellington D. Smith; that she had no conversation with the trustees named in the deed or any of them, after its execution, nor were any of them, except Lemuel and Ulysses T. Foster, aware of its execution until after her death; the former, when he first learned of its execution, a few days after the date thereof, approved of and assented to what had been done, but did nothing farther in the way of accepting the trust, other than to request Mr. Morgan to retain it as it would probably be safer in his hands than elsewhere. The court also found "that Mrs. Mundy did or said nothing more in the way of delivering said deed, but it was her intention to do whatever was necessary, to make the deed valid and effectual, and that the delivery to or leaving it with Morgan was intended by her to give it effect as a valid instrument. At the time of the execution, acknowledgment and leaving of said deed with said Morgan by Mrs. Mundy for the grantees, it was explained to her by Mr. Morgan that that was a good and sufficient delivery of it to make it operative."

One of the essential requisites to the validity of a deed, so as to pass the title, is delivery. Even although in all other respects it has been properly executed, yet it does not follow that the title to the property passes; the grantor yet retains control of the instrument, and may deliver it, absolutely, conditionally, or not at all. The act of delivery is not necessarily a transfer of the possession of the instrument to the grantee and an acceptance by him, but it is that act of the grantor, indicated either by acts or words or both, which shows an intention on his part to perfect the transaction, by a surrender of the instrument to the grantee, or to some third person for his use and benefit. The whole object of a delivery is to indicate an intent upon the part of the grantor to give effect to the instrument. The deed may be delivered to the grantee, or to a stranger unknown to the person for whose benefit it is made, and it has been held that such was a good delivery, when assented to by the grantee, after the death of the grantor. Hatch v. Hatch 9 Mass. 307; Foster v. Mansfield 3 Met. 412; Belden v. Carter 4 Day 66; Doe v. Knight 5 B. & C. 671. The delivery to a third person unconditionally for the use of the grantee gives effect to the deed (Concord Bank v. Billis 10 Cush. 278), and this even although the latter is not aware of the fact, if he subsequently assents. Cases cited, also Buffum v. Green 5 N.H. 71; Cooper v. Jackson 4 Wis. 537; Wesson v. Stephens 37 N.C. 557, 2 Ired. Eq. 557; see also Ellis v. Secor 31 Mich. 185; Wallace v. Harris 32 Mich. 380; Home Ins. Co. v. Curtis Id. 403.

So we have seen that acceptance by the grantee, if necessary to prove an actual acceptance, may be made in certain cases even after the death of the grantor. And cases which hold that an acceptance, at a time subsequent to that of delivery, would not be sufficient to give validity to the deed, concede, that where the act of delivery is in its nature a continuing one as leaving the deed on deposit, to be afterwards accepted by the grantee, a subsequent acceptance would be sufficient. Of course the deed where left on deposit this way might before acceptance be recalled,...