Bettinger v. Van Alstyne

—On the 25th of August, 1891, George Bettinger, then a resident of Ellisburgh, died, leaving, him surviving, the plaintiff (his widow) and his two sons, Edgar G. Bettinger and Silas F. Bettinger, and his daughter Betty E. Yan Alstyne, his only children and heirs at law. He left a last will and testament, which was admitted to probate in the surrogate’s court of Jefferson county on the 23d day of November, 1891. By his will he devised all his real estate to the plaintiff. He had been very ill for more than a year previous to his death, and had required and had received close attention, nursing, and care from the plaintiff, who became very much exhausted thereby, she being then advanced to the age of some 76 years. She resided a few miles from her daughter, and in the early days of September went to the daughter’s house, in New Haven, Oswego county. While there, considerable conversation was had between the daughter and the mother, as well as the daughter’s husband, in respect to the future disposition of the property owned by the plaintiff. And on the 25th of September, 1891, the plaintiff was taken to ride with the husband of the daughter, with a view of seeing a monument in a cemetery not a great distance from the residence of the daughter; and on that occasion she stopped at the house of S. M. Barker, who had, to a considerable extent, acted as conveyancer in the neighborhood, and while there two deeds were

He also found that the defendants claimed title to the lands under the deeds, and that "said deeds, and the record thereof, are a cloud upon the plaintiff’s title, and an apparent conveyance thereof to said grantees.” As conclusions of law he found, viz. : “ That by the commencement of this action the plaintiff has recalled said deeds, and revoked any authority given by her to said Schuyler M. Barker with reference thereto. (2) That said deeds did not and do not operate to transfer to the grantees therein named a present title to the plaintiff’s said real estate, or any part thereof.”

And he awarded a judgment in favor of the plaintiff,—that the deeds be surrendered, and delivered up to be canceled of record by the clerk of Jefferson county.

Appellants filed and served exceptions to the findings made by the trial judge. The deeds each recite a consideration of one dollar, and each contained a reservation of use of the property during the life of the plaintiff. It appears by the evidence that at the time the deeds were prepared no pecuniary consideration passed to the'plaintiff therefor, and none has passed to her since.

In the course of the testimony given by Barker as to the execution of the deeds, he says that the plaintiff said to him: “ ‘ Mr. Barker, you take these papers, and keep these in your possession until my death, and then you deliver Silas’ deed to him, and the other deed to Betty and Edgar.’ I think there was something said about recording them.”

In the course of his cross-examination he stated: “ After I had drawn these papers, she directed me to keep the papers in my hands until her decease, and then to deliver Silas’ deed to Silas, and the other deed to Betty and Edgar. Deeds were then talked about. The deeds were talked about there, and in that connection.

Again the witness says, at folio 111: “ I did not suggest the plaintiff had directed me to keep the deeds till her death, and then that I deliver them to the grantees. Plaintiff originated that idea, — that I hold the deeds until she died, and then deliver them over.. That was her suggestion. She said: ‘ I want you to take these papers, and keep them, and deliver them to these persons after my death.’ ”

Again the witness says, at folio 122 : “ She didn’t deliver the deeds or authorize them to be delivered to the grantees until after her death.”

In the course of the testimony of Mrs. Barker, she says that she was present on the occasion when the deeds were prepared, and heard the plaintiff’s instructions to Mr. Barker, and the witness adds: “She told him to keep the deeds in his possession, and deliver them to the parties at her death,”

And in the course of the cross-examination upon that subject she says: “I heard Mrs. Bettinger tell my husband that she wanted him to keep the papers until after her death, and then, to deliver them to Edgar and Betty and Silas.”

We think the testimony amply sustains the finding of the trial judge that the plaintiff did not intend “to deprive herself of the power to withdraw or alter them at pleasure, and that she did not irrevocably deliver the deeds to the grantees therein named.” Barnes v. Barnes, (Mass.) 37 N. E. 379 . In Eames v. Phipps, 12 Johns. 419 , it was held that a delivery is essential to the validity of a deed, and there can be no delivery without an acceptance by the grantee. In' Jackson v. Dunlap, 1 Johns. Cas. 114 , where the‘deed was found in the possession of the grantor at the time of his death, it was held that there was no actual delivery to or acceptance of the deed by the grantee, and therefore nothing passed by it. In Jackson v. Perkins, 2 Wend. 308 , it was held that a person affected by a deed may at any time question its validity, and show that it was not in fact duly executed or delivered, although it has been approved in the usual form by subscribing witnesses, and recorded. In Roosevelt v. Carow, 6 Barb. 195 , it was said by Edmonds, J., viz. :

“A delivery of a deed, to be valid, is such an act of the grantor, touching its execution, as deprives him of the power of controlling its operation, and confers on the grantee the right to enforce it, even against the will and pleasure of the grantor.”

In Hathaway v. Payne, 34 N. Y. 92 , it was held that: “Whether a deed executed, and not delivered immediately, hut handed to a stranger to be delivered to the grantee at a future time, be an escrow, or a deed of the grantor presently, depends upon the intent of the parties thereto.”

And Denio, C. J., at page 113, says: “In such a case the weight of authority is that no title passes until the final delivery, and that then, and thereafter, the title is, by relation, deemed to have vested as of the time of the first delivery to the third person.”

The same doctrine is stated by Coweit, J., in Tooley v. Dibble, 2 Hill, 643 .

In Chouteau v Suydam, 21 N. Y. 179 , it was held that paroi evidence was receivable as to whether there was an effectual delivery, or not, of a sealed instrument. The same doctrine is stated in Brackett v. Barney, 28 N. Y. 340 . In Jennings v. Jenn ings, 23 Wkly. Dig. 457 , it appeared that a father executed a deed purporting to convey a farm to the plaintiff, and, the next day after it was signed and acknowledged, it was burned. No valuable consideration passed between the parties, and there was evidence that when the father had executed the deed he handed it to his wife to keep until he told her what to do with it. The next day he told her to destroy it. And it was held bv this court that the evidence was insufficient to establish a delivery of the deed to or for the plaintiff at the time of its execution, with intent to vest

Appellant calls our attention to Messelback v. Norman, 46 Hun, 414 ; 11 St. Rep. 823 . In that case it was said that delivery is essential to the validity of a deed, and that to sign and seal and acknowledge a writing, and keep it in one’s possession conveys no title, and that there must be some act showing that the grantor intends that it shall take effect; and, upon the evidence there given, it was finally held that it did not justify a finding that the deed was not delivered. The deed had been delivered to the county clerk, and there was no evidence to show that it was so delivered for any other purpose than for the use of the grantee, and the grantor had carried the deed to a party who had drawn it, to have him take it to the county clerk’s office. We think the case differs very essentially from the one before us. Our attention is also called to Rathbun v. Rathbun, 6 Barb. 98 ,.where it appeared the grantor, for a valuable consideration, executed a deed, and delivered it to the clerk of Herkimer county for record, and for the use of his father, and “without any condition annexed to its delivery,” and it was held that upon an acceptance by the defendant the deed took effect from the time of such delivery. The ease, we think, is distinguishable from the one before us. Our attention is also called to Roosevelt v. Carow, Id. 190 , in which case it appears that a deed was executed, retained by the grantor in his possession for nearly four years, and until the time of his death, without disclosing its existence. In the meantime he treated the property as his own, and after his death the deed was found in his bureau ; and it was held “that such deed was void, and inoperative as a deed of bargain and sale, for want of a valid delivery,” also held “that such deed was not valid or operative as a voluntary settlement.” We think the case does not aid the appellant. Our attention is called to Rose v. Rose, 7 Barb. 174 , where testimony was given to the effect that at the time of the execution of the deed “the testator actually delivered the deed to the plaintiff,” and “nothing transpired to indicate that the delivery was intended by the parties to be complete.” We think the case is not helpful to the defendants. In Brinkerhoff v. Lawrence, 2 Sandf. Ch. 400 , it appeared that there were many circumstances in support of the presumption of a delivery of the instrument in such form as to make it valid, and the case did not turn wholly upon the question of whether there had been a delivery or not. In Crain v. Wright, 36 Hun, 74 , it was held that the intention of the party at the time of the execution of the deed was a question of fact, and that in that case no condition was attached to the delivery of the deed, and the request made was that it should not be exposed during the lifetime of the party executing it. That case was affirmed by the court pf appeals ( 114 N. Y. 307 ; 23 St. Rep. 245 ); and, in

The fact that the deeds were put upon record, under the circumstances disclosed by the evidence, at most, creates a presumption of delivery, which it was competent for the plaintiff to overcome by paroi evidence. Elsey v. Metcalf, 1 Denio, 323 ; Wilsey v. Dennis, 44 Barb. 354 ; Nottbecker v. Wilks, 4 Abb. Pr. 318 ; Van Valen v. Schermerhorn, 22 How. Pr. 419 (opinion by Balcom, P. J.); Foster v. Scythe Co., 47 Barb. 513 ; Jackson v. Perkins, 2 Wend. 308 ; Barnes v. Barnes, suqra.

Having reached the conclusion that the evidence sustains the findings of fact made by the trial judge, we are of the opinion that his conclusions of law therefrom are correct. The special term had ample power to remove the cloud upon the plaintiff’s land. She had remained in possession, so far as the evidence discloses, and is entitled to the relief granted, authorizing the county clerk to cancel the records of the deeds, and to the judgment to the effect that they are inoperative and invalid to pass a title to the grantees named therein. Fonda v. Sage, 48 N. Y. 173 ; Valentine v. Richardt, 126 id. 272 ; 37 St. Rep. 12 .

Judgment affirmed, with costs.

All concur.