Vaughan v. Godman

• Decision Date: 15 March 1884
• Docket Number: 9418
• Citation: 94 Ind. 191
• Parties: Vaughan v. Godman et al
• Court: Indiana Supreme Court

94 Ind. 191

Vaughan v. Godman et al

No. 9418

Supreme Court of Indiana

March 15, 1884

From the Tippecanoe Circuit Court.

The judgment is reversed, with instructions to overrule the demurrer.

W. C Wilson, J. H. Adams, J. A. Wilstach, J. W. Wilstach, W. D Tobin and -- Walsh, for appellant.

J. R Coffroth and T. A. Stuart, for appellees.

Zollars J. Niblack, J., did not participate in the decision of the cause. Elliott, J., dissents.

OPINION

Zollars, J.

Appellant commenced this action against his daughter Catharine and her guardian, McGrath. The purpose of the action was to set aside a deed from appellant to the daughter, and quiet the title to the real estate therein described in him, or, if this could not be done, to have a lien declared in his favor for the amount expended upon the real estate subsequent to the deed, and for other sums expended for the daughter.

Since this appeal was taken Catharine has been married, the guardian has been discharged, the case dismissed as to him, and the husband of Catharine, Claude Godman, has been made a party. This, as counsel for appellant concede, eliminates from the case the question of a lien for the amount expended by appellant, and leaves as the sole question for decision the validity and force of the deed.

The case is presented for review upon the ruling of the court below in sustaining a demurrer to the third paragraph of the complaint. The averments of that paragraph, so far as they need be set out, may be summarized as follows: Appellant was the owner of parts of two lots in the city of Lafayette, which he acquired by purchase and deeds--one in the year 1864 and one in 1865. This property was bought for a family residence, was paid for by appellant out of his earnings, and constituted the whole of his property. In 1859 appellant married Mrs. Shay; she did not at that time, nor did she at any time thereafter, own any property. Appellee Catharine was born in 1861; when she was five years old a brother of the mother's deceased husband threatened to sue appellant for a debt of $ 500, due him from the deceased husband, which appellant had never, in any manner, obligated himself to pay. At this juncture appellant consulted a distinguished lawyer, and upon his advice, as stated in the complaint, appellant and his wife "conveyed both said pieces of real estate to their said daughter, said defendant Catharine Vaughan, in order that the said plaintiff and his wife might not be molested with a lawsuit, and that the property might be preserved in the family, without expense of a litigation, by a deed dated October 19th, 1867, without any consideration, except the purpose of preserving the property, and for the expressed consideration of one dollar."

The averments of the complaint in relation to the delivery of the deed are as follows: "Plaintiff further avers, * * that said Catharine Vaughan, at the date of said deed, was only of the age of five years; that said deed was never delivered to her; * * * that this plaintiff, without any knowledge on the part of said Catharine Vaughan, took said deed, on the 21st day of October, 1867, to the office of the recorder of said county, and procured and paid for the recording of the same, and on or about the 1st day of November, 1867, obtained the same again from said recorder, and placed the same with his own papers, where it has ever since remained, and has never left his possession, nor been in the possession of said Catharine Vaughan, nor any other person except this plaintiff and his counsel. And the plaintiff further says and expressly avers, that said deed to said Catharine Vaughan was never delivered to her, nor to any person or persons for her; she had no knowledge whatever of said deed at the time it was signed, nor for more than twelve years thereafter, and the title was never accepted by her, nor possession taken by her, nor by any person for her (except the recent possession of said guardian appointed December 29th, 1880, be accounted such possession)."

It is further made to appear by the complaint that appellant occupied the property as a family residence until the death of his wife, and for some time thereafter, and remained in the possession until the appointment of the guardian for Catharine in 1880, paid the taxes, made improvements, collected the rents, etc.

McGrath was appointed guardian on the election of the daughter. After his appointment, and until the beginning of this suit, he collected the rents. It is further averred that at the solicitation of the daughter the guardian was about to apply for an order to sell the property.

The first and most important question presented by this complaint is, are the facts stated such that the court may pronounce upon them, as a matter of law, that the deed was or was not delivered?

The contention of appellee is that the complaint shows a delivery and acceptance of the deed, that a voluntary conveyance is good between the parties, and that appellant can not call the deed in question, because he had a fraudulent purpose in its execution. The position of appellant is the converse of this.

The adjudications establish the following, viz.:

A deed is not effectual to convey title without a delivery or what is equivalent to a delivery. Tharp v. Jarrell, 66 Ind. 52; Love v. Wells, 25 Ind. 503; 3 Washb. R. P. (4th ed.), p. 282, et seq.; Fletcher v. Mansur, 5 Ind. 267; Gray v. State, 9 Ind. 25.

A deed may be delivered by words without actions, and by actions without words. It may be delivered without being actually handed over. It may be delivered without being put into the hands of the grantee, as by leaving it with a third person. Nye v. Lowry, 82 Ind. 316; Dearmond v. Dearmond, 10 Ind. 191; Burkholder v. Casad, 47 Ind. 418; Fewell v. Kessler, 30 Ind. 195; Somers v. Pumphrey, 24 Ind. 231; Stewart v. Weed, 11 Ind. 92; Guard v. Bradley, 7 Ind. 600; Squires v. Summers, 85 Ind. 252. And so a deed may be delivered by the grantor having it recorded, if his purpose in so doing is to effectuate a delivery. Taylor v. McClure, 28 Ind. 39; Somers v. Pumphrey, supra; Mallett v. Page, 8 Ind. 364; 3 Washb. R. P. (4th ed.), p. 284; Tallman v. Cooke, 39 Iowa 402.

If a deed is found in the possession of the grantee, or is recorded by the procurement of the grantor, a delivery will be presumed, but this presumption is not conclusive.

Such facts are competent evidence of a delivery. From them there arises a presumption of a fact, which makes a prima facie case. This presumption may be overthrown by evidence. The question of delivery is a question of fact to be determined on the evidence. In all disputes as to whether or not a deed has been delivered, the most important inquiry is to ascertain the intent of the grantor in the act, or several acts, which, it may be claimed, constitute a delivery. Did he intend to part with all control over the deed? Did he intend to divest himself of the title and lodge it in the grantee?

In the case of Mallett v. Page, supra, it was said: "It seems equally clear that the mortgage was delivered. It was left for record at the proper office, and that is prima facie a delivery. * * * A deed may be delivered by any acts or words evincing the intention of the grantor to deliver it."

In the case of Berry v. Anderson, 22 Ind. 36, it was said: "To constitute a delivery there must be intention to part with control over the deed as its owner."

It was said in the case of Somers v. Pumphrey, supra, that "The law does not prescribe any particular form of words, or actions, as necessary to consummate a delivery. Anything done by the grantor, from which it is apparent that a delivery is thereby intended, either by words or acts, or by both combined, is sufficient."

In the case of Hotchkiss v. Olmstead, 37 Ind. 74, this court said: "To constitute a delivery there must be an intention to part with the control over the instrument, and place it under the power of the grantee, or some one for his use."

It was said in the recent case of Nye v. Lowry, supra: "Some question is made as to what constitutes a delivery. 'It is much a question for the jury in each particular case.'" See, also, to the same effect, Dearmond v. Dearmond, supra.

In the case of Squires v. Summers, supra, it was said that "The possession by the grantee of a deed regularly executed is prima facie evidence of its delivery." See, also, Burkholder v. Casad, supra.

In 3 Washburn on Real Property (4th ed.), p. 286, the author says: "In undertaking to define what will constitute a delivery of a deed, it is said that it may either be 'actual, that is, by doing something, and saying nothing; or verbal, that is, by saying something, and doing nothing; or it may be by both.' But it must be by something answering to the one or the other, or both these, and with an intent thereby to give effect to the deed." See, also, the same volume, pp. 291 and 296; Methodist Church v. Jaques, 1 Johns. Ch. 450.

In the case of Thatcher v. St. Andrew's Church, 37 Mich. 264, the court said: "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."

A part of the syllabus in the case of Mitchell v. Ryan, 3 Ohio St. 377, which states correctly the points decided, is as follows: " The record of a deed is prima facie evidence of its delivery. Such prima facie case may be rebutted by proof." See, also, Byars v. Spencer, 101 Ill. 429.

In the case of Jones v. Swayze, 42 N.J. 279, the court, in...