
    Meeks v. Stillwell et al.
    
      Delivery of deed of gift — To stranger for -use of grantee — Grant.or may resume possession of\ when — Grantor's intent — ■Grantees title — Delivery during grantor's life of deed intended to be effective after grantor's death.
    
    1. The rule that delivery of a deed of gift may be to a stranger for the use of the grantee implies that the instrument truly expresses the intention of the grantor. But where the instrument so delivered does not express the real intent of the grantor, and has not been recorded nor actually delivered to the grantee, the grantor may lawfully resume possession of the instrument and correct it so that it will conform to the , real intent.
    2. If, after such correction, there is a valid delivery, the grantee’s title will be such as is given by the corrected instrument.
    3. Equity will not reform a deed of gift so as to give it an effect contrary to the intention of the grantor.
    4. Where husband and wife, being in possession of a homestead) the title to which is in the wife, join in a deed of gift intending that it shall not be delivered until after the decease of both, and the wife attempts to deliver such deed during the life of the husband without his knowledge and consent, the right of the husband in the homestead will not be affected by the deed. ■
    (Decided May 26, 1896.)
    Error to the Circuit Court of Miami county.
    Plaintiff’s action was for the recovery of real estate, and an accounting for rents and profits. Defendants denied plaintiff’s right to a recovery, and sought to have title quieted on alleged equitable grounds. The common pleas found plaintiff entitled to possession, and ordered a reference to ascertain rents and profits. The defendants thereupon appealed to the circuit court. That court found for the defendants, ordered title quieted, and adjudged that petition be dismissed at plaintiff’s costs. Plaintiff here asks a reversal of that judgment.
    
      M. Ii. Gcontz, and A. F Broomhall, for plaintiff in error.
    The court erred in holding the first delivery to Jas. H. Means to be absolute and irrevocable when the proofs showed Means acted for Mrs. Meeks. The donee must take possession and retain it till donor’s death. Hatch v. Atkinson, 56 Me., 324. It is perfectly natural to believe that the deed was executed for the purpose claimed. If Mrs. Meeks had died before the law was changed Dr. Meeks would have taken a life estate in the property, as they intended, and they undoubtedly thought that the deed could remain in the bureau drawer until the Doctor’s death, and then Roxie could take it.
    It follows from above that the gift was donatio causa mortis. It cannot be a gift inter vivos, because Mrs. Meeks continued to occupy and use the property as her own up to the time of her death. The Law Reports, Equity, Cases, vol. 9, page 44.
    The deed could not be inter vivos as to Dr, Meeks and causa mortis as to Mrs. Meeks. That it was causeo mortis as to Mrs. Meeks, is beyond dispute. Then what are the rights of the parties to this suit?
    If the deed was ceousco mortis as to Mrs. Meeks, it was also subject to her revocation and modification. Thornton on Gifts, section 123; Am. and Eng. Ency., vol. 8, page 1351; 2 Kent Com. 444-85 Phipps v. Hope, 16 Ohio State, 586; Andrews v. Andrews 12 Ind. 348; Curtis v. Barns, 38 (Hun.), N. Y., 165; Emery v. Clough, 63 N. H., 554.
    The grantee cannot claim under the deed which slie admits, or rather which the undisputed proof shows was made causa mortis and at the same time dispute a limitation which the grantor herself wrote in the deed while in sound mind and under no duress or undue influence.
    The deed must stand as it is so far as the grantee is concerned, or it must be held wholly void and Mrs. Meek’s estate settled under the statute. Williams v. Schatz, 42 O. S., 47.
    Again, it is clear, from the proof, that it was not the intention of these old people to deliver this deed until after their deaths. 14 Allen, 417; 86 Mass., 417.
    The following authorities hold that a gift of real estate causa mortis is invalid, Am. & Eng. Ency., vol. 8, page 1350; Peck v. Rees, 7 Utah 467, or Book 13, Lawyers’ Report Annotated, page 714.
    
      Cal/oin D. Wright and Thomas i& Thomas, for defendants in error.
    As to acceptance there can be no doubt, in our opinion. The gift being" beneficial the law presumes acceptance. Mitchell v. Ryan, 3 Ohio St., 377; Harvey v. Gardner, 41 Ohio St., 642.
    We cite the following authorities on our claim that the title passed to Roxa, upon the delivery of the deed to James H. Means. Mitchell v. Ryan, 3 O. S., 377; Black v. Hoyt, 33 O. S., 203; Crooks, v. Crooks, 34 O. S., 610; Ball v. Forman, 37 O. S., 132; Burt v. Cassety, 12 Ala., 734; Guard v. Bradley, 7 Ind., 600; Brown v. Austen, 35 Barb. (N. Y.), 341; Bryan v. Wash, 7 Ill. 557.
    This is not a gift causa mortis, first, because real estate is not the subject of such a gift. Meach v. Meach, 24 Vt., 594.
    Second, because it was to take effect immediately, and no control over it reserved by the donor. Gratton v. Appleton, 3 Story, 755; Raymond v. Sellick, 10 Conn., 480; Dole v. Lincoln, 31 Me., 432.
    There is no fraud set up by the plaintiff, then the court must assume that the act of Mrs. Meeks in the delivery was in fact in accordance with the understanding of the parties at the time of its execution and contemplated delivery to Roxanna Stillwell. The state of mind as to what one could do is not evidence of what one did do. 2 Ohio St., 500.
    It being admitted that the delivery was made to Jas. H. Means, trustee, for the purpose of being put on record, and that fact not being disputed in fact in the testimony of the plaintiff, is now es-topped from denying it and its legal effect. 14 Ohio St., 414.
    This would not be true if there was fraud ox-mistake. 18 Ohio St., 246.
    The plaintiff by his silence as well as his acts bar him ixow; and by those acts and silence con vince us that he has no real claim. 2 Ohio, 506.
    Declarations and acts of the donor after delivery of the deed in which it may be sought to qualify or change the terms of the deed are not competent proof, and should be rejected by the court. 7 Ohio St., 292; 15 Ohio St., 15.
    Except, if Mrs. E. B. Meeks intended to make the gift, her declarations to make that gift are competent if she made it. 29 Ohio St., 14.
    We think that the declarations of the grantor eaxxnot be shown to prove fraud in an action between the grantee and his heirs. 26 Ohio St., 402.
    It is a dangerous doctrine that parol evidence may be admitted of the statements made after the delivery of the deed, by Mrs. Meeks. 21 Ohio St., 596.
    
      The plaintiff and Mrs. Meeks lost all control over the deed after its delivery for record to Jas. H. Means. 1 Ohio, 321; 1 Ohio St., 141.
    . Suppose that this was a gift “causa mortis,” there is no proof that such was the fact except that the grantor died soon after its delivery; and if it was, the delivery of the deed without any qualifying statements or limitations or acts, takes it out of the rule. 3 Ohio St., 377; 5 Ohio St., 124-130, cited; 33 Ohio St., 203-212; 37 Ohio St., 132; 38 Ohio St., 300-314; 43 Ohio St., 77-89.
   Spear, J.

The record discloses that in the year 1886, and for a long time prior, Eusebia B. Meeks and her husband, Isaac S. Meeks, the plaintiff, were in the possession, as a homestead, of the real estate which is the subject of the action, and so remained in possession until the decease of Mrs, Meeks, June 17, 1889. The title was in the wife. On August 6,1886, they executed a deed of gift of the premises to Roxanna M. Still-well, a child six years of age and a granddaughter of Mrs. Meeks. The deed.was placed in the drawer of a bureau in their bedroom, with the understanding that it would be delivered after their decease. It there remained until the month of May, 1886, when Mrs. Meeks, being ill with what she believed was, and which proved to be her last sickness, and being told that the deed would have no effect unless delivered before her death, without the knowledge or consent of her husband, handed the deed to an attorney who was her friend and adviser, with directions to place it on record for Roxa. A few days thereafter, and while the deed was in the hands-'of the attorney, Mrs. Meeks sent for him to bring' the deed to her, which was done. She then stated that it was not her intention to have her husband put out of the property, and that he should be allowed to live there and occupy it as he had been occupying it before. She then wrote in the deed, following the warranting clause, these words:

‘ This deed is by no means designed to prevent the aforesaid Dr. Isaac S. Meeks, my husband, from the right of a home in part of the house, he to pay the taxes and make the repairs. Also can collect the rents. E. Í3. Meeks.

“June 3d, Troy, Ohio.”

The deed was then handed to the attorney, who the next day delivered it to the recorder of deeds of the county, and it was at once recorded. The plaintiff had knowledge of the above addition to the deed and assented to the subsequent delivery for record.

After the decease of the wife the plaintiff, being advised that his rights in the homestead had been taken away. by the deed, and that he would be liable for rent if he remained in the house, moved out. Later, being advised to the contrary, this suit was commenced, to obtain possession, etc.

It was held by the circuit court that the delivery of the deed by Mrs. Meeks to the attorney, with direction to have it placed on record for Roxa, constituted a complete deliverjq and that the subsequent transactions respecting the deed were without legal effect. In this we think the learned court erred. True it is that the delivery to another than .the grantee does not necessarily invalidate it, for, as held in Mitchell v. Ryan, 3 Ohio St., 377, delivery of a deed may be to a stranger for the grantee’s use. In the case at bar, however, it is at least doubtful whether the delivery referred to having been made to one who was thus constituted . the grantor’s agent for one purpose only, viz., to deliver the deed to the recorder for record, the grantor might not, before that act was done, even though the instrument had expressed the intention of the makers, revoke the authority and resume control of the instrument. The acts which the grantor apparently intended should constitute a delivery were the leaving of the deed with the recorder and its record. Neither of these acts had been performed, and it is difficult to see why the grantor might not change her direction to her agent with like effect as though she had undertaken to deli ver the deed to the recorder herself and changed her mind before doing so. But be that as it may, the deed on its face and by the record, contained a reservation in favor of the husband. The donee, in face of this reservation, could not prevail without a reformation of the instrument setting aside that provision, and before the court could do that all of the facts pertaining to the execution and delivery must be inquired into. Such inquiry disclosed that the addition made by Mrs. Meeks was for the purpose of making the instrument conform to her intention. That fact appearing, it necessarily ended the controversy. Equity will not reform a deed of gift against the intention of the donor. On the contrary, such deed will be set aside when it is clearly shown that it does not conform to the intention of the donor, or was executed under a material misapprehension as to its effect. Mulock v. Mulock, 31 N. J. E., 594; Story’s Eq. Jur., sec. 706a; Thornton on Gifts, secs. 118, 450.

Objection was made to proof of the declarations of Mrs. Meeks as to her intention made to the attorney at the time she corrected the deed, as hearsay. We think the declarations were competent as part of the res gestae. They accompanied the act, and served to illustrate and give color to it.

But the first delivery to the attorney should not be sustained against the plaintiff for the further reason that it was not assented to by him, and was contrary to the understanding had when the deed was executed.

Objection was made to the testimony by the plaintiff respecting the cause of his moving out of the property. We think it was competent to show that he surrendered possession in ignorance of his legal rights, and to rebut any presumption of an agreement which would prejudice his rights.

A portion of the premises was sold and conveyed by the guardian of the grantee, while the plaintiff was voluntarily out of possession. As to this portion the plaintiff should not now be heard to assert his claim. But, under the undisputed evidence the plaintiff should recover possession of whatever the reservation in the deed secures to him, less the parcel above referred to. The meaning of the reservation clause is not free from doubt, but we are inclined to the conclusion that the intention of Mrs. Meeks was to secure a home for her husband in the entire premises, and so hold.

The judgment will be reversed and judgment for plaintiff entered, dismissing the cross-petition, awarding possession to the plaintiff, with costs, and remanding the cause for further proceedings as to rents and profits.

Judgment reversed.  