McGrath v. Hyde

HAYNE, C. This was a suit to cancel a deed from a husband to his wife, upon the grounds that the grantor had not sufficient capacity to make it, and that it was not delivered. The trial court found that the grantor had capacity to make it, but that it was not delivered, and rendered judgment for the plaintiffs. The defendant appeals. We think that the finding that the deed was not delivered is not sustained by the evidence. The notary who drew the deed testified that he did so at the request of the grantor, without the intervention of any other party; that the grantor instructed him to draw the deed, and signed and acknowledged it before him, stating'at the time that “he wished to give the property to his wife.” The wife testifies that her husband came home one day, when the following occurred: “He puts a deed'on the table, and I says to him, ‘What is this?’ and he says, ‘It is a deed to you.’ He says: ‘Deeding the West Mission street property all to you—especially to you.’ So I picked it up, and I looked at the date, and I began to cry. I thought then sure he was going to die, because he deeded the property to me, and I called Mary’s attention at the same time, and I said: ‘Here, Mamie, look at this’; and then he says: ‘It is not recorded, but it will do,’ he says, ‘any time, and say nothing now, ’ he said, ‘but just put it away. ’ ’’ The daughter testifies as.follows: “I just came home from town, and father and mother were sitting at the table, and this was before them, and my mother was in tears, and I asked her what was the matter, and she said that father was just after deeding the property to her, and with that my father got up, and walked away, and I said: ‘What of it?’ Well, she said: ‘Oh, he is going to die’; and I said: ‘No; that is no reason he is going to die; it is best he should do it now. ’ Question. What was the position of the deed? Answer. It was lying on the table between them. Q. Did your father say anything? A. He said, after we had got through talking, he said: ‘Give it to me, and I will put it in the trunk, and there is no need o E recording it until afterward’; and he said: ‘You can have it recorded at any time.’ ” The memory of the mother was at fault as to who put the deed in the trunk. In one place she [100]says that she did, and in another place that her husband did. The daughter says that her father put it in the trunk, and we assume that such was the fact. The only evidence against this was the testimony of one Maggie Murphy, who lived in. the house, and testified that she saw the parties “every day at that time,” and was in a position to hear if there had been much conversation, and that she neither saw nor heard anything of the deed at the time. But the testimony of this witness is so vague as to the continuousness of her presence, and as to why she “was in a position” to hear and see, that we think it amounts to nothing. From the whole testimony, we think that it appears without substantial conflict that the husband instructed the notary to draw the deed, signed and acknowledged it, stating that he intended to give the property to his wife; went home and threw it on the table, saying, in substance: “There is a deed of that property to you; put it a Way”; that the wife took it up, and looked at it, and, after some conversation to the effect that it was not necessary to have it recorded then, the husband put it away in his trunk. It further appears that the husband did not want it recorded then, alleging as a reason that he wished to make some improvements on the property, which we think show's nothing more than that he wished to appear to be still the owner of the property, so far as outsiders were concerned.