Wright v. Bragg

• Decision Date: 15 January 1901
• Docket Number: 702.
• Citation: 106 F. 25
• Parties: WRIGHT v. BRAGG.
• Court: U.S. Court of Appeals — Seventh Circuit

106 F. 25

WRIGHT v. BRAGG.

No. 702.

United States Court of Appeals, Seventh Circuit.

January 15, 1901

Denis F. Cash, for plaintiff in error.

Edward S. Bragg, for defendant in error.

GROSSCUP Circuit Judge, dissenting.

This is a contest over the title to a certain note and real estate mortgage for $5,000 made by Abram A. Ver Brych, payable to Eliza O. Farnsworth, and dated 30th October, 1894. The plaintiff in error claims title under a will made by Eliza O Farnsworth, the owner of the mortgage, dated November 10 1895, which in terms bequeaths the same to her. The defendant in error claims title by virtue of an assignment in writing of the note and mortgage made by Mrs. Farnsworth in her lifetime to James H. Farnsworth, since deceased, and whom the defendant represents as administrator, and dated on November 17, 1894. The facts are substantially these: Eliza O. Farnsworth, being the owner of the $5,000 note and mortgage in question, signed and acknowledged the execution of what purported to be an assignment of the same to James H. Farnsworth, of Seattle, Wash., for the consideration of $5,000. At some time (just when does not appear) Mrs. Farnsworth deposited this instrument with James T. Green, of Fond du Lac, Wis., who then and until her death was her agent, attending to various matters of business for her. Both Green and Mrs. Farnsworth died before this action was commenced, so that the evidence as to when and how the note, mortgage, and assignment were left with Green is not clear or satisfactory. This appears, however: That Green placed the assignment in an envelope, near the top of which he indorsed the date of the instrument, and further down the name of Mrs. Farnsworth, followed by these words, apparently in pencil: 'Left with James T. Green. In case of death, to be delivered to Jas. H. Farnsworth or his heirs. ' This envelope, containing these papers only (that is, the note, mortgage, and assignment), he placed unsealed in a large envelope containing other papers belonging to Mrs. Farnsworth, which he placed in a box, which box he kept in his safe, where these papers remained until the death of Mrs. Farnsworth on November 15, 1895. On October 22, 1895,

but a few days before her death, there was paid on the note $250, interest for one year to October 30, 1895, which Green credited upon the note as attorney for Mrs. Farnsworth, the indorsement being signed, 'Eliza O. Farnsworth, per J. T. Green. ' On November 19, 1894, Mrs. Farnsworth, then a resident of Fond du Lac, went to Georgia, whence she returned in April, 1895. In October, 1895, she visited Mrs. Delia De Neveu, of Green Bay, where she remained until her death in November. Early in November, 1895, Mrs. De Neveu, at the request of Mrs. Farnsworth, wrote to Green, at Fond du Lac, to send her any money he might have on hand belonging to Mrs. Farnsworth; and he remitted to her $300, which presumably included the interest received by Green upon this note. On November 10, 1895, Mrs. Farnsworth executed and delivered to P. B. Haber an order upon Green to deliver to him the note in question, and all other papers, securities, and moneys in his possession belonging to her. On the same day she made her will, which was introduced in evidence, whereby she bequeathed the $5,000 note and mortgage to Ella Wright, the plaintiff in error, and expressly canceling and revoking any assignment thereof. After her death, on November 15th, the will was admitted to probate, and no question has been made of its validity. When Haber presented the order above mentioned, Green delivered him the note and mortgage, with other papers belonging to Mrs. Farnsworth, but not the assignment to Farnsworth, which after Green's death came to the hands of the attorney for defendant in error.

Before WOODS and GROSSCUP, Circuit Judges, and BUNN, District Judge.

Upon the above statement of facts BUNN, District Judge, .

There are many assignments of error, not all of which will it be necessary to notice. Although the assignment of the note and mortgage to Farnsworth recites a consideration of $5,000, the record shows that it was made without consideration, and without the knowledge of James H. Farnsworth, the assignee named, who was a brother of Mrs. Farnsworth's husband who had previously died. On the contrary, the record and briefs show that the defendant in error is claiming title by virtue of the assignment as a gift inter vivos to James H. Farnsworth from Eliza O. Farnsworth, and the questions in the case all relate in different forms to the validity of the transfer as a gift. On the trial the court admitted in evidence, against the objection of the plaintiff in error, the envelope with the indorsement made in Green's handwriting, as tending to show a delivery of the note and mortgage; and the jury were instructed by the court to consider it as evidence, provided they found the indorsement was made at the time of the execution of the assignment, so as to make it a part of the res gestae. The difficulty with this proposition is that there is nothing to show or tending to show when the indorsement was made,-- whether by Green with Mrs. Farnsworth's knowledge at the time of the execution of the assignment, or by Green afterwards without the knowledge of Mrs. Farnsworth. We think, therefore, the admission of the indorsement as evidence of delivery, and the instructions of the court to so consider, it was error. It was incumbent on the defendant in error-- the burden was upon him-- to show an actual delivery to James H.

Farnsworth, or to some one for him, of the instrument under which he now seeks to hold, so as to devest the grantor of all control over the property. There were no circumstances from which the jury could have the right to infer a delivery from the indorsement so admitted in evidence. There was nothing in the case to indicate in any way to the jury when the indorsement was made, and whether with or without the knowledge or consent of the grantor in the assignment.

But, assuming that the evidence was properly admitted, what does it prove? How far does it go towards making a case? The difficulty in the case is that, giving the largest possible effect to the evidence, it does not show a delivery of the note, mortgage, and assignment, or either of them, to the supposed donee. The most it would show is that the papers were deposited with the grantor's agent, to be by him delivered to the grantee in case of her death; and this was not a good and complete delivery, in law, to pass the title. There was in fact no delivery at all to the donee. There is no evidence that he knew anything about the transaction. There was no delivery to any one representing the donee or in his confidence. The evidence, treated as competent, shows that it was left with Green to be delivered to the donee upon the donor's death. Green was her agent, and the assignment, with the note and mortgage, was still under her control. Her agent's custody was her custody. And therefore, there was no more a delivery to the donee than as though she had kept the papers in her own personal possession. The authorities on this question are quite uniform and satisfactory. A gift inter vivos, to be valid, must take effect at once, and there must be nothing to be done essential to the validity; and, if it is to take effect in the future, there is no gift, but only a promise to give. So a gift to take effect at the death of the donor, is void. Thornt. Gifts, Sec. 7c. In other words, to constitute such a gift, there must be an immediate transfer of the title, and the donor must relinquish all present right to or control over the thing given. Zeller v. Jordan, 105 Cal. 143, 38 P. 640; Hale v. Joslin, 134 Mass. 310. In this last case it was held that where a person executes a deed of land, and places it in the hands of A., with directions to keep it during the grantor's life, and on his death to deliver it to the grantee, A. holds it as agent of the grantor, and not as agent of the grantee, and the grantor may revoke it at any time. The remarks of the court in disposing of the case are quite applicable to the case at bar. It says:

'We think the evidence shows that Elijah Hale did not intend that the deed should be delivered until his death. He did not intend that the plaintiff should have any interest in the land, but intended to keep in himself the dominion and control of it. It was in the hands of Whitney as a depository for the grantor, and not as agent or trustee for the grantee.'

The same principle has been adjudged in many cases.

In Williams v. Schatz, 42 Ohio St. 47, there was a direction to one Dr. Blake, given by the grantor, then sick, that if he died the doctor should deliver the deed of gift to the grantee. The grantor died, and the deed was delivered and recorded according to his directions after his death. But the court held that there was not a valid delivery, and hence the instrument never took effect. The transfer was in the nature of a testamentary disposition, and as such not valid. Dr. Blake was the agent of the grantor, and not the grantee, and hence the instrument was not only revocable by the grantor at any time before his death, but, not having parted with all dominion over it during life, it became on his death a mere nullity. The same doctrine is held by the supreme court of Maine in Allen v. Polereczky, 31 Me. 338. The gift in that case also was to take effect only upon the death of the donor, and the court say:

'According to the testimony, the gift was to become the property of the donee absolutely only in case of death of the donor. It cannot, therefore, be sustained as a valid gift inter vivos.'

See, also, Bank v. Fogg, 82 Me. 538, 20 A. 92, where the same doctrine is affirmed.

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