Majority
p. 641Tooley and others vs. Dibble.
Headnote
A quit claim deed purporting to convey one’s “ right of expectancy” or possibility of inheritance, will not affect the grantor’s title as heir, subsequently acquired. Where a father signed and sealed a deed purporting to convey to his son a farm, placing it in the hands of B. with instructions to deliver it after the father’s death, but not before unless both parties called for it; and after the father died B. delivered the deed accordingly: Held, that the title of the son took effect, by relation, from the time the deed was left with B.; and that the son’s quit claim executed intermediate the leaving of the deed with B. and the father’s death, though importing a mere conveyance of the son’s “ right of expectancy” in the land, would pass his title.Ejectment tried at the Oneida circuit in October, 1841, before Gridley, C. Judge. The plaintiffs who are the heirs at law of Jeremiah Tooley deceased, gave in evidence an inventory, in these words: “ Goods, effects and land sold and conveyed by Asa Dibble, (the defendant,), to Jeremiah Tooley, to wit: One sorrel horse at the price of $60; a wagon, $25; a harness, $15; one cow, $15; a yearling heifer, $8; a saddle and bridle, $10; a sleigh, $15; a set of blacksmith’s tools, $50; a right of expectancy in a farm of fifty-two and a half acres, on which the said Asa and his father now reside, $100 = $298.” The farm of fifty-two and a half acres included in this inventory is the premises in question. Immediately under the inventory and on the same
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paper there was a regular quit claim deed of the property therein specified, dated October 3rd, 1815, executed to Jeremiah Tooley by the defendant; which deed was acknowledged on the 13th, and recorded on the 14th of October, 1815. At the date of this deed the land in question belonged to the defendant’s father, who died in 1816. Before his death he had signed and sealed a deed in fee conveying the land to the defendant. This deed was delivered by the grantor to one Benedict with directions to deliver it to the defendant after the grantor’s death, which was done, but not to deliver it during the grantor’s life, unless both he and the defendant came for it. The deed was probably designed as a compensation to the defendant for remaining with his father. Benedict testified that he could not remember the precise time when the deed was executed; but he thought it was twenty-eight years before the trial, which would carry it back to a time anterior to the date of the conveyance from the defendant to Jeremiah Tooley. The witness said that no consideration was expressed on the face of the deed, and he could not recollect whether it was a warranty deed or not. It appeared that the defendant took the benefit of the insolvent act on papers presented November 10th, 1817, in which papers no real estate was mentioned. These facts appearing when the plaintiffs rested, the circuit judge ruled that they were not entitled to recover, and directed a nonsuit. The plaintiffs excepted, and now moved for a new trial on a bill of exceptions.
C. P. Kirkland, for the plaintiffs.
J. Benedict, for the defendant.
By the Court,
The deed to the plaintiffs’ ancestor, so far as regards the real estate, was an attempt to convey the expectancy of an heir, or, at most, the right arising under the deed to the defendant, which had not yet been delivered to him. Taking the inventory in connection with the deed, we see it was so understood by
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the parties. The deed was a mere quit claim; and the plaintiffs’ counsel does not pretend that it can avail either directly or as an estoppel to carry the naked possibility of inheritance. But it is said, the deed to the defendant was an escrow in the hands of Benedict, which, on its final delivery, took effect by relation from the day of its date; and that the judge, therefore, erred in nonsuiting the plaintiffs, inasmuch as on the other questions, there was evidence which should have gone to the jury. I am inclined to think with the plaintiffs’ counsel that the question whether this nonsuit can be retained, comes down to the effect of the defendant’s deed from his father. This seems to be entirely settled. If not technically an escrow, it was in the nature of one; and on the death of the defendant’s father, it took effect by relation, from the time of the delivery to Benedict. (Ruggles v. Lawson, 13 John. 285 ; Wheelwright v. Wheelwright, 2 Mass. Rep. 447 , 454; Belden v. Carter, 4 Day, 66 , 79; Stewart v. Stewart, 5 Conn. Rep. 317 , 320.) The case at bar is stronger than any of those cited; for in each of them a power remained in the grantor till he died to revoke and resume possession of his deed. Here the consent of the grantee was by agreement madé necessary, before the deed could be delivered up. No right of a third person is interposed to prevent the effect of the relation as between the defendant and the ancestor of the plaintiffs. And should the jury have believed that the delivery to Benedict was anterior to the deed from the defendant, there was, in fiction of law, a complete title upon which the latter could operate. This passed to the ancestor of the plaintiffs, and they, as his heirs, are consequently entitled to recover. In saying so, I speak under the qualification that the deed expressed, or was in fact given upon an adequate consideration; and that there was no adverse possession effectual as a bar. These are questions which, with the time when the deeds were respectively executed, appear to have been proper for the jury; and therefore the learned judge ought not to have nonsuited the plaintiffs.
New trial granted.