Bury v. Young

Garoutte, J. This is an action of partition. Plaintiff and defendant Young are sisters, and also daughters of one M. A. Hinkson For title to support their respective claims Mrs. Bury relies upon a deed from her father, and Mrs. Young claims as a devisee under her father’s will. While suffering from a paralytic stroke, Hinkson called to his bedside for legal advise, as to the disposition of his property, one Hazen, an attorney-at-law, and acting upon his advise he signed and acknowledged a grant deed of his real estate, wherein his aforesaid daughters were named as grantees. This deed he gave to Hazen, with instructions not to record it, but to deliver it to the grantees upon his death. He appears to have recovered from his sickness, and subsequently endeavored to secure possession of the deed from said Hazen, but was unsuccessful in this regard. At a later date he made a will devising all his real estate to appellant Young. Subsequently he died, and Hazen delivered the aforesaid deed to plaintiff Bury.

The sole question in this litigation is, Did the title pass to the grantees under the deed—in other words, was there a delivery of the deed by the grantor? The findings of the court as to the matter of delivery are fully supported by the evidence of the witness Hazen, and it is as to the sufficiency of those findings of fact to support a delivery of the deed that our attention will be directed. The findings are as follows: —

•1. That on the day last named the said M. A. Hinkson delivered the said deed to P. J. Hazen, Esq., of Modes to, California, for the said plaintiff and defendant last named, and instructed the said Hazen to hold the same for said plaintiff and defendant without recording it until his, the said M. A. Hinksou’s, death, and thereupon to deliver the same to the said ..plaintiff and defendant.

2. That the said M. A. Hinkson then and there parted with all dominion over said deed, and reserved no right to recall it or to alter its provisions, or to have or enjoy any other or further interest in said premises than to hold the use thereof until his death.

[449]If the question here presented were a new one, or if the decisions of the courts of our sister states might be fairly said to divide as to what was the true rule of law applicable to such case, speaking for myself alone, I am not prepared to say but that the judgment in this case should be reversed for the reason that the aforesaid findings indicate upon the part of the grantor an intention to make a post mortem disposition of his property, and such a thing cannot be done by deed; but the decisions of the courts of many states, promulgated by the most learned judges of those states, hold that the facts stated in the findings quoted constitute a valid delivery of the deed, and that the fee-title i-forever passed from the grantor, and we deem the law settled in that regard. It may be conceded that the roads traveled by courts in arriving at this conclusion have not always been the same, but whatever may have been the various Hues of reasoning pursued, the same result has always been reached, and a valid delivery declared. We shall not enter into a discussion of the elementary principles of law supporting the proposition here involved, but content ourselves with a reference to the views of various courts as to the law applicable to the state oí facts here presented.