
    Butts and others, Respondents, vs. Richards, imp., Appellant.
    
      December 11, 1912
    
    February 18, 1913.
    
    
      Deeds: Delivery: Presumptions: Retention of deed until death: Husband and wife: Evidence.
    
    1. To constitute a valid delivery of a deed the grantor must part with his dominion and control of it, with intention to pass title.
    2. The presumption of intention to deliver that might arise from the execution of a deed is overcome by showing that the grantor had the deed in his possession and under his control at the time of his death.
    3. Even if, in the case of a deed from husband to wife, a lesser degree of proof of delivery is required than in other cases, yet the finding of the trial court in this case that there had been no delivery is held not to be against a clear preponderance of evidence, from which it appears, among other things, that a deed made by a husband to his wife, conveying his farm, was kept until his death, three years later, locked up in a box, the key to which he carried, and does not appear that the deed ever came to the wife’s possession until about ten days after his death, or that he ever said or did anything, except to make the deed, evincing an intention to vest the title in her during his lifetime.
    Kerwin, Seebeckeb, and Timlin, JX, dissent.
    Appeal from a judgment of tbe circuit court for Bicbland county: Geoege ClehmeNtsoN, Circuit Judge.
    
      Affirmed.
    
    Eor tbe appellant, Lucy Richards, there was a brief by Lincoln & Brindley, and oral 'argument by E. E. Brindley.
    
    Eor tbe respondents there was a brief by Burnham & Blade, and oral argument by O. D. Blade.
    
   BaeNes, J.

Henry Butts died intestate in August, 1908, leaving a widow, two children, and several grandchildren as his heirs at law. Prior to August 4, 1905, he owned a farm of seventy-four acres in Bichland county. On such date he executed a warranty deed of this farm to his wife, Elizabeth. It does not appear that such deed ever came into the possession of tbe wife until about ten days after Butts’s death. It was then found by bis son in a box in wbicb Mr. Butts kept bis money and valuable papers. Tbis box was kept locked and Butts carried tbe key on bis person. During bis last illness be gave tbe key occasionally to a grandchild who was living with him, for tbe purpose of getting money from tbe box for household expenses. It does not appear that be ever gave tbe key to bis wife for any purpose. After bis death tbe box was found locked and tbe key was found in-the clothing of tbe deceased. Gertrude Warren testified to a conversation with tbe widow of Henry Butts shortly after bis death, in wbicb Mrs. Butts stated that her husband bad made no will but bad made a deed to her; that tbe deed was not placed on record because tbe husband did not want to record it; that her husband never gave her tbe deed, but kept it locked up in a drawer, and that she was unable to find tbe key. Philip Warren gave substantially tbe same evidence. Tbe evidence further showed that tbe box in wbicb tbe deed was kept was customarily referred to as decedent’s box, both by himself and bis wife. Francis Stace, tbe attorney who drew Mrs. Butts’s will, testified that she told him she owned a farm in Wisconsin wbicb her husband bad given her a deed of and wbicb she wished to dispose of by will. He testified further: “I think she stated that she bad a deed some three years before her husband died.” A very general objection was made to tbe competency of tbis evidence. Lucy Bicharás, a daughter, testified that her father told her at one time that tbe property was in tbe name of himself and wife.

Elizabeth Butts disposed of tbe farm by will, and tbe contest arises between tbe heirs at law of Henry Butts and tbe devisees under tbe will of bis widow. Tbe circuit court found that there bad been no delivery of tbe deed and that tbe property should be distributed according to tbe laws relating to tbe estates of intestates. Tbe legatees under tbe will, or at least some of them, appeal.

Tbe only question in tbe case is whether tbe finding of tbe circuit judge that there was no delivery of the deed is against the clear preponderance of the testimony. If the inference of nondelivery may be fairly drawn from the evidence, the judgment must be affirmed.

Delivery is largely a question of intention. Curry v. Colburn, 99 Wis. 319, 320, 74 N. W. 778; Zoerb v. Paetz, 137 Wis. 59, 117 N. W. 793. It may be accomplished by words without acts. Bogie v. Bogie, 35 Wis. 659, 666. Conversely, it may also be accomplished by 'acts without words. Cerney v. Pawlot, 66 Wis. 262, 28 N. W. 183; Bates v. Winters, 138 Wis. 673, 120 N. W. 498. Rut the grantor must part with his dominion and control over the deed with intention to pass title. Curry v. Colburn, supra; Prutsman v. Baker, 30 Wis. 644. There are authorities which hold that when it is shown that a deed has been properly executed a presumption of delivery arises. Jones, Evidence (2d ed.) § 50 (44). Delivery may also be implied from circumstances. 21 Cyc. 1290, and cases cited. The presumption of intention to deliver that might arise from the execution of a deed is overcome by showing that the grantor had the deed in his possession and under his control at the time of his death. Shetler v. Stewart, 133 Iowa, 320, 107 N. W. 310; Fisher v. Hall, 41 N. Y. 416.

The inherent weakness in the case for the appellant is that there is nothing in the testimony tending to show that Butts ever uttered a word or performed an act which evinced an intention on his part to vest the title to his property in his wife prior to his death, except to make a deed which he carefully locked up in his strong box, the key of which he carried about his person. He guarded it as closely as he did his pocketbook. When any money was wanted from this he apparently did not permit his wife to get it, but had his grandchild bring it to him so that he could take out what money he saw fit. After his death his widow was unable to find the key. During her lifetime she apparently never told any one tbat tbe deed bad been delivered to ber or tbat ber bnsband bad said anything to ber evincing an intention to make a delivery during bis lifetime. Conceding tbat tbe testimony of tbe attorney should be considered, it proves very little. He thought Mrs. Butts told him tbat ber husband deeded tbe property to ber. She might well have made this statement^ because she knew tbat ber husband bad in fact executed a deed, 'although there bad been neither delivery nor intention to deliver. She was not learned in tbe law and might be wholly ignorant of tbe fact tbat delivery was necessary to convey title. In any event ber statement was correct, if by saying tbat ber husband deeded ber tbe property she meant tbat be bad executed a deed of it to ber. Tbe husband no doubt intended tbat bis wife should have tbe property after bis death and told ber tbat be bad made a deed, but it was an entirely reasonable inference for the trial court to draw tbat Butts meant to keep tbe deed and tbe property under bis control as long as be lived. Tbe deed was executed about three years before Butts died. It conveyed all bis real estate. A statement made by the wife, when told tbat tbe deed was no good unless given to ber, throws some light on tbe subject. She said: “You know bow it always was with Henry [meaning ber husband], big I, little you, be never wanted me 'to have nothing.” Tbe trial court on tbe whole evidence reached the conclusion tbat Butts supposed tbat a deed might be made to perform the functions of a will and that he wanted to bold onto tbe farm as long as be lived, thinking tbat after bis death tbe farm would go to tbe widow by virtue of tbe deed. Whether this be true or not, tbe inference is quite strong tbat Butts did not intend to place tbe title to his property in his wife during his lifetime. The case is quite similar in its facts to Reichert v. Wilhelm, 83 Iowa, 510, 50 N. W. 19, in wMch it was held that there was no delivery. Other analogous cases are Roup v. Roup, 136 Mich. 385, 99 N. W. 389; Bisard v. Sparks, 133 Mich. 587, 95 N. W. 728; Anderson v. Anderson, 126 Ind. 62, 24 N. E. 1036; Walls v. Ritter, 180 Ill. 616, 54 N. E. 565; Hayes v. Boylan, 141 Ill. 400, 30 N. E. 1041; Noble v. Fickes, 230 Ill. 594, 603, 82 N. E. 950; Oswald v. Caldwell, 225 Ill. 224, 231, 80 N. E. 131.

If it should be held that a lesser degree of proof of delivery is required between husband and wife than in other cases, we would still be unable to say that the findings of the circuit judge were against the clear preponderance of the evidence.

By the Court. — Judgment affirmed.

The following opinion was filed February 26, 1911:

Keewih, I.

(dissenting). The deed in question was duly made, signed, and sealed in 1905, and placed in a bureau drawer in the house occupied as the home of the husband and wife, grantor and grantee. This drawer was kept locked and the key carried by the grantor, husband. The grantor died intestate in 1908 leaving the deed in the drawer. After his death it was taken therefrom by the grantee and recorded. The property covered by the deed was the homestead. The grantee died in 1910. The only question involved is whether the deed was delivered to the grantee.

Where a deed is found in the possession of the grantee after death of the grantor, there is a presumption of delivery. Jones, Evidence (2d ed.) § 50 (44) ; 1 Devlin, Deeds (3d ed.) §§ 261, 262, 269; Dale v. Lincoln, 62 Ill. 22; Pitts v. Sheriff, 108 Mo. 110, 18 S. W. 1071; Wall v. Wall, 30 Miss. 91; Stevens v. Hatch, 6 Minn. 64. The fact that a deed is found in the possession of a grantor does not always rebut the presumption of delivery, if such possession is consistent with delivery. Bunnell v. Bunnell, 23 Ky. Law Rep. 800; Davis v. Davis, 92 Iowa, 147, 60 N. W. 507; Brown v. Brown, 61 Tex. 56; Reed v. Smith, 125 Cal. 491, 58 Pac. 139.

•While it is true that there must be a delivery in all cases to make a valid deed, a manual passing of the deed to the grantee is not always necessary. There may be a valid delivery by words or acts of the grantor with intent to deliver, though, there be no manual passing of the deed to the grantee. Le Saulnier v. Loew, 53 Wis. 207, 10 N. W. 145; Zoerb v. Paetz, 137 Wis. 59, 117 N. W. 793; Bates v. Winters, 138 Wis. 673, 120 N. W. 498; Klabunde v. Casper, 139 Wis. 491, 121 N. W. 137; Austin v. Austin, 105 Wis. 680, 81 N. W. 1012; Chase v. Woodruff, 133 Wis. 555, 113 N. W. 973; Bogie v. Bogie, 35 Wis. 659. In Bogie v. Bogie, supra, it is said: “As a deed may be delivered to a party without words, so may a deed be delivered by words without any act of delivery.” In Curry v. Colburn, 99 Wis. 319, 320, 74 N. W. 778, this court said: “The question of delivery is largely of intention.” In 21 Cyc. 1290, it is said: “The deed of the husband to the wife should be executed, acknowledged, and recorded in accordance with the local laws. The deed must of course be delivered, but delivery may be implied from the circumstances of the case and from the conduct of the parties.” If the possession of the grantor is consistent with delivery, the pre-' sumption of delivery may still obtain and will prevail until overcome by sufficient evidence. Brewster, Conveyancing, § 298, and cases there cited. Any evidence tending to show delivery, uncontradicted or unimpeached, is sufficient under the circumstances of the instant case.

In the case at bar there is no evidence sufficient to overcome the presumption of delivery arising from the mahing and sealing of the deed. On the contrary the evidence produced tends to prove delivery. There is no direct evidence that the deed was not delivered. The case is made to turn, in the opinion of the court, upon the fact that the deed was kept in the drawer to which the grantor carried the key. This, in my opinion, does not overcome the presumption of delivery arising from the making of the deed, upon the undisputed facts of the case. Aside from the making of the deed, all the circumstances support the presumption of delivery. The property was the homestead, consisting of seventy-four acres of agricultural land, worth about $3,000, probably not more than sufficient to properly maintain the grantee during the balance of her life. The husband, grantor, made no will, but allowed the deed to remain in the drawer for a period of about three years and until his death. Had he not intended a delivery, doubtless he would have made some other disposition of the property. Under the settled doctrine of this court, no manual passing of the deed to the wife, grantee, was necessary. Delivery could be made by words with the intention of delivery, without any other act on the part of the grantor. On making, signing, and sealing the deed the grantor could make delivery by words expressing his intention to deliver to the grantee. The undisputed evidence shows there was delivery. The respondents proved the declarations of the grantee to the effect that the grantor, her husband, deeded the property to her. The only inference that can be drawn from this evidence is that the deed was delivered. The undisputed evidence further shows that the grantee understood the property was deeded to her from the time the deed was made and so reported to the scrivener who drew her will and caused the property to be included in it. The grantee also said, in a conversation shortly after the death of her husband, that he did not make, a will, but “he has made a deed and deeded the property to me.” This evidence standing alone proves delivery.

But it is said that the statements given in the same connection by the grantee to the effect that her husband never gave her the deed, but kept it locked in a drawer and that she was unable to find the key, are sufficient to overcome the • declaration that her husband had deeded the property to her. This position is untenable. Her evidence clearly meant that she never had manual possession of the deed, and was not inconsistent with her statement that the property had been deeded to and was owned by her. If there was a delivery the title could not be divested by any act of tbe grantor. Keeping the deed in the drawer was consistent with delivery, the grantor acting as custodian of the deed, since he desired that it should not be recorded during his life. That the husband should act as custodian of the wife’s valuable papers is not unusual, but on the contrary, under the circumstances of this case, would reasonably be expected. The drawer was the usual and proper place to keep valuable papers of husband and wife and the place where the deed would naturally and probably be kept. It does not appear that there was. any other place for the safe keeping of such an instrument. Under these circumstances there should have been some’proof negativing the presumption of intended delivery to the wife arising from the relationship and situation of the parties, and this proof was not produced. The ease was tried and decided as if the presumptions were the other way.

Moreover, it is not established that the wife, grantee, did not have access to the drawer. There is no direct testimony that she was excluded from it or did not have access to it. The only evidence on the point is that her husband carried the key and the negative evidence of witnesses that they never saw the wife go to the drawer in person. But it appears from the evidence that whenever she desired she sent her grandson to her husband and got the key and had the drawer unlocked. One witness testified: “My mother caused the drawer to be unlocked when she wanted to get money out of.it; that is where Pa kept his money.” The drawer was spoken of as Henry’s drawer, meaning grantor’s drawer. Grantee would say to her grandson, “Get your key and go to Henry’s drawer,” and the grandson testified that he would unlock the-drawer for grantee perhaps once a month. The testimony generally is that she sent her grandson to her husband for the key when she needed money, procured the money, and returned the key to her husband. It is said in the opinion of the court that it does not appear that the husband ever gavé the key to his wife for any purpose. It does not appear, however, from the evidence that he did not give his wife the key and allow her access to the drawer.

■ It is also said in the majority opinion that it does not appear that the husband, grantor, ever uttered a word evincing an intention to vest title in his wife, the grantee. There is nothing in the evidence showing that he ever uttered a word evincing an intention inconsistent with vesting title in the grantee. The evidence of the wife that he had deeded the property to her, together with the presumption arising from the making of the deed, clearly establishes the execution and delivery of the deed to her.

Shetler v. Stewart, 133 Iowa, 320, 107 N. W. 310, is cited in the opinion of the court as authority to the point that the presumption of intention to deliver arising from execution of a deed is overcome by showing that the grantor had the deed in his possession and under his control at the time of his death. An examination of this case, however, will -show that it is readily distinguishable from the case at bar. In that case the deeds were made and placed in the private box of the grantor and remained there during his life, and the grantees had no knowledge that such deeds were made until after his death, and there was no evidence of delivery. To the same effect is Fisher v. Hall, 41 N. Y. 416, also cited in the opinion of the court.

The following cases are relied upon in the opinion- of the court, but I think an examination of them will show that they are distinguishable from the instant case: In Reichert v. Wilhelm, 83 Iowa, 510, 50 N. W. 19, there was a contest by the creditors of the alleged grantor, and that question was controlling. In Roup v. Roup, 136 Mich. 385, 99 N. W. 389, it was established that the deeds were not to be recorded until after the death of the grantor and that the object of making was to avoid the expense of administration. Bisard v. Sparks, 133 Mich. 587, 95 N. W. 728, is a case where it was agreed tbat a deed to an infant be retained by tbe grantor in bis possession and under bis control until bis death, tbe father of tbe infant, however, having knowledge of tbe deed and having been instructed by tbe grantor to have tbe deed recorded if anything happened to him (grantor). Anderson v. Anderson, 126 Ind. 62, 24 N. E. 1036, is where deeds were seen in tbe private drawer of grantor by the grantees, but after tbe death of the grantor tbe deeds could not be found. Held, no delivery. In Walls v. Ritter, 180 Ill. 616, 54 N. E. 565, it was held tbat tbe mere fact of tbe grantee in a deed producing tbe key to tbe grantor’s safety-deposit box after tbe latter’s death, in which box was found a sealed envelope containing tbe deed, did not prove delivery. Hayes v. Boylan, 141 Ill. 400, 30 N. E. 1041, is a case where a deed was made by tbe grantor to bis three sons. He banded it to bis son Charles, saying, “Take this deed and put it in our box at tbe bank.” Tbe grantor did no other act evincing delivery, but requested Charles not to let tbe other grantees know anything about tbe matter until after bis death, tbe grantor retaining possession and control of tbe lands until bis death. Held, no delivery. Noble v. Fickes, 230 Ill. 594, 82 N. E. 950, involved tbe question of whether tbe instrument was good as a testamentary disposition of tbe property — whether it was good as a will. Oswald v. Caldwell, 225 Ill. 224, 80 N. E. 131, also involved tbe question of whether tbe instrument was good as a testamentary disposition of tbe property.

It is doubtless true tbat if tbe deed were found in possession of grantor at time of bis death, without explanation, there would be presumption of nondelivery. But tbe facts here raise presumption of delivery, and tbat presumption has not been overcome. Tbe wife understood tbe property bad been deeded to her — that it was her property. The evidence shows this, and this evidence is undisputed. Her evidence tbat she never bad tbe deed merely meant tbat it bad been kept in her husband’s drawer, where it might and probably would be kept in case the husband intended delivery. The key to the drawer was not found until about ten days after bis death.

Besides, these statements were drawn out after she had been told that if she did not have the deed and it was not recorded the property was not hers. There is no question of creditors or testamentary disposition in this case. All the equities favor execution and delivery of the deed. It was the natural and probable thing, under the undisputed facts, for the husband to have done. The attack on the deed was delayed until death had closed the mouth of the grantee so her evidence could not be produced. But even without her evidence and as the record stands, I am convinced that the clear preponderance of the evidence establishes that the deed was delivered, therefore the judgment below should be reversed.

I am authorized to say that Mr. Justice Sílbeosle and Mr. Justice TimliN concur in this dissent.  