Porter v. Woodhouse. NORA J. PORTER vs. EDWARD G. WOODHOUSE. Hartford Dist., Oct. T., 1890. ANDREWS, C. J., CARPENTER, Loomis, SEYMOUR and TORRANCE, Js. A conditional delivery of a deed can be made only by placing it in the hands of a third person, to be kept until the happening of the event upon which it is to be delivered over by such third person to the grantee. But it is essential to such delivery that there be a parting with the possession of the deed and with all power and control over it by the grantor, for the benefit of the grantee, at the time of delivery. An aged woman for some time before her death had owned two houses, in one of which she lived. Several years before her death she made warrantee deeds of one of the houses to P. and of the other to R. The deeds were fully executed and each was filed on the back with the name of the grantee. They were placed in a box in which she kept her will, her bank books, her insurance policies, and other important papers, and in which she had also a bag containing one thousand dollars in gold. The box was concealed in a closet in her bedroom. During the last year of her life she told an attendant that she had deeded away the two houses, but did not state to whom. Being injured by a fall and apprehensive of death, she told her attendant where the box was and requested her to bring it out, which was done. She then said "I put that box into your possession; my private papers are in it and a bag of gold; my will is there and the deeds of the two houses. I told you that I had deeded away these houses; on the deeds are the names of the persons who are to have them." She then told the attendant to take charge of the box and put it back into the closet, and told her where the key to it was, and closed by saying "I have said enough so that you will know what to do with the box in case I should die. If I live I will talk further about the contents of the box; but don't you open it until after my funeral." She died about a month later. Held that there had been no such delivery of the deeds as to pass the title of the property to the grantees. [Argued October 14th-decided December 15th, 1890.] TWO ACTIONS to compel the defendant to deliver to the plaintiff in each case a deed of certain real estate, left for delivery after her death by Julia A. Hinman, the grantor; brought to the Superior Court in Hartford County, and tried before Thayer J. Facts found and judgment rendered for the defendant in both cases. The plaintiffs appealed. Porter v. Woodhouse. The case is fully stated in the opinion. The two cases involved the same facts and were tried together in the court below and a single finding made, and they were argued together in this court. C. E. Perkins, with whom was H. Cornwall, for the appellants. There is no specific form of words required in cases like this to vest the title. The rule of law is, that it must appear from the acts and words of the grantor that she intended that the grantees should have the deeds after the death of the grantor. It is not even necessary that the deeds should be actually delivered to the grantees or to any one for them; it is enough if they are so placed that they, or some other person for them, can get the deeds after the death of the grantor. Less evidence is required in cases of gift, and where no rights of creditors or others are affected. In Robinson v. Taylor, 42 Fed. Rep., 810, the court says: "The rule of law is that deeds of gift and settlement between the parties, and in no way affecting the rights of others, will be held as executed and delivered on less evidence than such conveyances for value, and which may af fect the rights of creditors and of others than the parties." In Woodward v. Camp, 22 Conn., 457, a husband and wife executed a deed of the wife's land, and the husband took the deed and promised to give it to the grantee after the wife's death, so that the deed remained in the possession of one of the grantors, but the court held this to be a delivery, and said:"She had parted with the possession of the deed with an intention to have the property vest in the grantee at her decease." There was not only no delivery to the grantee, but the deed never passed out of the hands of one of the grantors; it never went even into the hands of a third person. What apparently controlled the mind of the court was, that the grantor intended that the property should vest in the grantee after her death. So in Ward's Appeal from Probate, 35 Conn., 163, the grantor made a deed to her sister, and put it into a trunk that was used in common Porter v. Woodhouse. by her sister and herself. It did not appear that the sister or any one else ever actually had the deed in their possession, but the court said that as the case found that the grantor intended that her sister should have the property, and that she had done enough to vest the title in the sister, the inference was that she placed it in the trunk for the use and benefit of her sister, and that made it a good delivery. See also Merrills v. Swift, 18 Conn., 257. In Fisher v. Hall, 41 N. York, 421, the court says:-"It is necessary that the deed should be placed within the power of some other person for the grantee's use, or that the grantor shall unequivocally indicate it to be his intention that the instrument shall take effect as a conveyance of the property, in order to have it produce this result." In Burkholder v. Casad, 47 Ind., 422, the court says:-"We think there must be some act or declaration on the part of the grantor from which it may be inferred that he intended to part with the title to the property. *** Anything done by the grantor, from which it is apparent that a delivery was intended, either by words or acts, or both combined, is sufficient." In Stevens v. Hatch, 6 Minn., 76, the court says:-"The main thing which the law looks at is whether the grantor indicates his will that the instrument should pass into the possession of the grantee, and if that will is manifest then the conveyance inures as a valid grant, although, as above stated, the deed never comes into the hands of the grantee." In Hinson v. Bailey, 35 Northwest Rep., 626, (Iowa), the grantor told the justice before whom it was acknowledged, to keep the deed till she died, and then record it. It was held a good delivery. In Hill v. Hill, 10 N. East. Rep., 667, (Illinois), the grantor asked the justice to keep the deeds in question till he died, and then deliver them to his sons, the grantees; but the justice refused to do so. He then said he would "put the deeds where the boys would get them." Before his death he was staying at the house of one of the grantees, and after his death the deeds were found in a trunk belonging to one of the grantees at this house. It was held that this sufficiently showed the intention of the grantor to be V. Porter v. Woodhouse. that the deeds should become effectual after his death, and this was all that was necessary. In the cases of Jones v. Loveless, 99 Ind., 317, and Owen v. Williams, 15 N. East. Rep., 678, deeds were placed in the vaults of other persons. for safe keeping, but from the statements of the grantors it was held in the latter case that the title passed, and in the first that although, as the estate was insolvent, the title did not pass as against creditors because the deed was voluntary, yet as against the heirs it would have passed. In Standiford Standiford, 97 Misso., 231, the grantor, after executing a deed, gave it to the justice and said, "You take that deed and keep it safely." It was held that as these and other expressions of the grantor showed that he intended to have his son have his property, there was a sufficient delivery. In Doe v. Knight, 5 Barn. & Cress., 671, the grantor executed a deed to one Garnons and left it on the table. About that time he gave his niece a paper parcel and said, "Here, Bess, keep this, it belongs to Mr. Garnons." It did not appear whether the deed was then in it, but a few days after he asked her for the parcel; she gave it to him, and a few days after he gave it back to her, only saying, "Here, put this by." After his death the deed was found in the parcel. The court held that this was a good delivery, because it appeared from what the grantor said that he meant to have it a valid and subsisting deed. It appears from these, and innumerable other decisions which might be cited, that the rules of law applicable to such cases are these:(1) The mere fact that a grantor has signed and acknowledged a deed, if he keeps it himself, is not enough to pass the title. (2) But if, besides this, he does acts or uses words which show that he intends to have the deeds become operative, so that the grantee shall have the property conveyed, either before or after his death, courts will carry out this intention and hold that there was a sufficient delivery. The cases in this state, and the later cases elsewhere, show a strong tendency to escape from any arbitrary rule requiring any particular acts or words to constitute a delivery, or even an actual parting with the manual possession to the Porter v. Woodhouse. grantee, which is really only a lingering remnant of the old feudal custom which required actual seisin of a twig or piece of turf, and to assimilate deeds to other instruments, such as notes, etc., where the question was whether on the whole the acts and words of the maker showed that he intended that the paper should become operative. A. F. Eggleston, for the appellee, cited-Coke Lit., 35 b, 36 a, 171 b; 3 Washb. R. Prop., 5th ed., 299; Belden v. Carter, 4 Day, 79; Alsop v. Swathel, 7 Conn., 500; Merrills v. Swift, 18 id., 261; Woodward v. Camp, 22 id., 459; Shurtleff v. Francis, 118 Mass., 154; Elsey v. Metcalf, 1 Denio, 323; Young v. Young, 80 N. York, 422. ANDREWS, C. J. These are two cases tried together and depending on the same facts. The defendant is the executor of the will of Mrs. Julia Hinman, late of Hartford, deceased. The complaint prays that two deeds now in the possession of the defendant be delivered, one to the said Nora J. Porter, and the other to the said Julia Robertson. The only question in the case is, whether on the facts found these deeds were so delivered as to pass the title. The facts are as follows: Mrs. Julia Hinman in her lifetime, and until her death, owned two houses in Hartford, in one of which she lived. She died on the 10th day of June, 1888, aged eighty-two years. Several years before her death she made a deed of one of these houses to Mrs. Porter, and at another time a deed of the other house to Mrs. Robertson. They were warrantee deeds in form and were expressed to be for a valuable consideration. They were signed, sealed, witnessed and acknowledged. All the requisites of a formal execution were complete and each was filed on the back with the name of the grantee. Nothing was paid for them; they were in fact deeds of gift. The grantees never knew until after the death of Mrs. Hinman that they had been made. These deeds were placed by Mrs. Hinman in a box in which she kept her will, her bank books, her policies of insurance, and |