
    Dukes v. Spangler.
    1. Although there may have been no manual delivery of a deed, nor any thing- said, in terms, about its delivery, yet the fact of delivery may be found from the acts of the parties preceding, attending, and subsequent to the signing, sealing, and acknowledgment of the instrument.
    2. "Where real estate is conveyed by a husband to his wife, through the intervention of a trustee, the destruction of the unrecorded deeds by the husband, with the assent of the wife and the trustee, will not, of itself, estop the wife, as against the grantor’s heir, to claim the land under such conveyance.
    Error to the District Court of "Wood county.
    On March 12, 1875, Elvira Dukes filed, in the Court of Common Pleas of Wood county, a petition against Nancy D. Spangler, and George W. 'Spangler, her husband. The object of the action was to quiet the plaintiff’s title to two hundred and forty acres of land in that county, of which she has the possession, the defendant, Nancy, claiming an estate therein.
    The case was appealed to the district court, where it was heard on the petition, amended answer, reply, and testimony. And the district court, having heard the plaintiff’s testimony, dismissed the petition; whereupon, a motion for a new trial having been overruled, a bill of exceptions, embodying all the testimony, was taken, and, on leave, a petition in error was filed in this court.
    The plaintiff is the widow of'John Dukes, and claims the land by conveyance from her late husband, through the intervention of a trustee; and the defendant, Nancy, is the daughter of John Dukes by a former marriage, and claims the property as his only heir at law.
    The defendant, Nancy, insists that the deed to the trustee was never delivered; and, further, that the deed to the trustee, and the deed from the trustee to the plaintiff, were destroyed in the lifetime of John Dukes, and by his direction, the plaintiff and the trustee assenting to such destruction.
    The principal questions presented are:
    1. Do the acts of the parties, as proved, constitute a de livery?
    2. The deeds having been destroyed in the lifetime of John Dukes, and by his direction, with the knowledge of the plaintiff and the trustee, and without objection, is the plaintiff, under the circumstances, precluded from maintaining her action?
    The facts, as they appear in the record, are as follows:
    On November 15, 1872, John Dukes, who resided on the land in controversy, being sick, sent for Lewis E. Dubbs, a justice of the peace, to prepare and take the acknowledgment of certain deeds which he desired to execute. Dukes was then the owner of 1,240 acres of land, and was worth, after deducting debts, between $30,000 and $40,000. The plaintiff was his third wife, and he had been married to her more than ten years, but there was no issue of the marriage, the defendant, Nancy, being his only child and heir at law. He was then about seventy years of age, and was thought to be on his death-bed. He informed Mr. Dubbs that he wanted to convey the land in controversy to Samuel Wood, as a trustee, who would then convey it to his wife, the plaintiff; that he desired to convey eighty acres to Joseph Horn, a young man he had raised; that the remaining portion of his lands he desired to give to one of two objects, concerning which he desired to consult Mr. Dubbs; that one of the objects was to establish an institution at Weston or Milton Center for the education of young men for the ministry, and the other was to make a donation to the Methodist Missionary Society; but that he wanted the deed made to his wife first.
    Mr. Dubbs advised Dukes to make a will, and informed him that he doubted whether the deed could be made to his wife in the way stated, but Dukes said he knew better, as he had consulted a lawyer. He estimated the land in controversy at $12,000, and said that he had given to his daughter Nancy $14,000, which was all he intended she should have.
    Mr. Dubbs prepared the deed to Horn, which was then executed. He also prepared, in the front room, a deed from Dukes and wife to Wood, who was present with his wife. He says: “We then went into the room where Dukes was,” passing through another room on the way. “ I am certain I read all or most of it to him; I exjfiained it to him, I know, so that he understood it; he rose up in the bed and signed it; I do not remember if they held him up or put something behind him; I think they put something before him to write on ; I then carried the deed into the front room, where it was signed by Mrs. Dukes.” It was also signed there by George France and Mr. Dubbs as witnesses, and the certificate of acknowledgment was signed by Mr. Dubbs, at the same time, in his official capacity.
    Mr. Dubbs further says: “After signing the deed to Wood, Dukes said nothing about delivering it; he did not say what I should do with it; I took the deed out on my own responsibility; I had no instruction to give the deed to any person ; what I did with it was without any instruction from Dukes. After the deeds had been signed, Dukes complained that he was unable to go any further; said he had pain in his side; seemed wearied; first wanted me to stay that night and finish, hut finally concluded he would send for me when he got able.” It does not appear, however, that the conveyance for the remaining portion of his real estate was ever executed.
    After the deed to Wood had been thus executed, Mr. Dubbs wrote a deed from Wood and wife to the plaintiff for the same land, which deed was executed in duo form; and Wood then handed both deeds to the plaintiff, who took them and laid them away.
    With respect to the deed to himself, Mr. Wood says: “After tbe deed had been signed and completed as above, Mr. Dubbs handed it to me. When he handed it to me, I was standing near the door between thé room where the writing was done and the room where Mr. Dukes was lying; the door was open and Mr. Dukes was lying with his face toward it; I was standing in full view of him, but ;X do not know whether he saw Mr. Dubbs hand me the deed or not; there was nothing to prevent his seeing, if he had been looking.”
    As to the destruction of the deeds, Mr. Dubbs testified: “In July or August, 1873, I met Mr. Dukes on the road, and he said to me some of his friends were making trouble about those deeds, and he thought they had better be destroyed. lie wanted me to come down and destroy the deeds. A short time after this, I went to Mr. Dukes’ house. I asked Dukes if he still wished to have those deeds destroyed. He said he did, and asked his wife to get them. She brought them from an adjoining room, and handed them to him. He handed them to me. ... I then asked Mr. Dukes what I should do with them. He said, ‘destroy them.’ I asked Mrs. Dukes if it was her wish to have them destroyed. She hesitated some time — it seemed to me some two minutes — and spoke hesitatingly, and so low that I could scarcely hear her, ‘I suppose so, if it is his wish.’ . . . When he said, ‘Elvira, get those deeds,’ she said nothing, but went and got them. Wood (the trustee) and France (the other subscribing witness) were there: it seemed to have all been understood between them before I got there; I saw nothing indicating at the time any feeling or misunderstanding between Dukes and his wife. I took the deeds out in another room and destroyed them.”
    Mrs. McMahon testified to a conversation she had with Dukes about the deeds, after they had been destroyed. She says: “ Mr. Dnkes said to me that his wife was dissatisfied because they were destroyed; that some of his friends were bothering themselves about his business, and were threatening to sue him if he would not destroy the deeds, and to satisfy them, he had caused them to be destroyed ; that his wife had never agreed to it, and he was sorry he had done it; he said that although he had destroyed the deeds, he intended she should have the land ; that he would pay his debts, and then do as he pleased.”
    "William Cost testified to a similar conversation.
    The consideration named in the deed to Wood, and in the deed from Wood and wife to the plaintiff, was $12,000, but no money was paid, or intended to be paid. The deeds were never recorded.
    John Dukes died January 28, 1875, intestate.
    
      Cook & Troup, for plaintiff in error :
    Dukes’ acquiescence constituted a delivery of the deed. Somers v. Pumphrey, 24 Ind. 240; Stewart v. Weed, 11 Ind. 94; Williams v. Sullivan, 10 Rich. Eq. 217; Mitchell v. Ryan, 3 Ohio St. 377.
    The deeds having taken effect, their destruction was a nullity. 1 S. & C. 461; 1 Greenl. Ev., §§ 265, 568; 3 Wash. R. Prop. 223, 566 ; Nicholson v. Halsey, 1 Johns. Ch. 417; Reifner v. Bowman, 53 Penn. St. 313 ; Holbrook v. Tirrell, 9 Pick. 105 ; Gilbert v. Bulkey, 5 Conn. 262; Schutt v. Large, 6 Barb. 317; 19 Penn. St. 119; 9 Mass. 367; 13 Mass. 498.
    Even if the plaintiff could divest herself of the estate by the destruction of the deed, it could not pass to Dukes except through a trustee. White v. Wager, 32 Barb. 250 ; Winans v. Peebles, 32 N. Y. 423 ; Graham v. Van Wyck, 14 Barb. 531.
    
      
      J. H. & F. A. Reid and Whiteley § Blackford, for defendant in error:
    Delivery is essential, and here there was no delivery. 2 Black. Com. 306; Hammell v. Hammell, 19 Ohio, 17; Mitchell v. Ryan, 3 Ohio St. 377.
    The deeds having been destroyed by direction of the grantor, with the assent of the plaintiff, and not having been recorded, the plaintiff is estopped to offer parol evidence of their contents. 3 Wash. R. Prop. 275; Thompson v. Thompson, 9 Ind. 323; Thompson v. Ward, 1 N. H. 9; Mussey v. Holt, 4 Fost. (N. H.) 248. Dodge v. Dodge, 33 N. H. 487; Com. v. Dudley, 10 Mass. 404; Barnett v. Thorndike, 1 Greenl. 73; Mason v. Grant, 21 Maine, 160; Blaney v. Hanks, 14 Iowa, 400; Barker v. Kane, 4 Wis. 12; 1 Greenl. Ev., § 265.
   Okey, J.

At the conclusion of the plaintiff’s testimony, the court dismissed the action. The question is, therefore, whether the plaintiff' had presented a case which, prima facie, entitled her to the relief demanded.

The character of the conveyance, being in the nature of a settlement, is such as the law will sustain. Crooks v. Crooks, 34 Ohio St. 610; Dale v. Lincoln, 62 Ill. 22. And it could make no difference, even as to creditors, much less as to the defendant Nancy, that Dukes was indebted, when the conveyance was made, in sums amounting, in the aggregate, perhaps, to $10,000 ; for the property retained was, at the time, “ clearly and beyond doubt sufficient to pay all the donor’s debts.” Crumbaugh v. Kugler, 2 Ohio St. 373 ; Evans v. Lewis, 30 Ohio St. 11.

The objection to the parol evidence of the contents of the deeds on any other ground than.that of estoppel,-which will be presently considered, was not tenable. The proof, on this point, was not only satisfactory, but there was no violation of the statute of frauds in admitting it. Rev. Stat., § 4198; Blackburn v. Blackburn, 8 Ohio, 81.

Nor is there any doubt as to the admissibility of the declarations of the grantor, made subsequently to the aeknowledgment of the deed, for the purpose of showing their delivery and the circumstances under which the instruments were destroyed. Tipton v. Ross, 10 Ohio, 273.

We come, then, to consider whether the deed to the trustee was delivered. That a deed is invalid until delivered, is doubted by no one; but an absolute delivery may be made by words and acts, or either, and no particular form is essential, though intent to vest in the grantee the custody of the instrument, no less than the estate, is essential. Rev. Stat., § 4106, note.

Here it appeal’s that Dukes had a fixed purpose to make the conveyance ; he had. consulted an attorney as to the form in which the title should be transferred to his wife; he sent for the justice of the peace to prepare the deeds and take the acknowledgments ; he was in consultation with the officer an hour or more; the deeds were prepared in accordance with his directions; he signed the deed to the trustee while in bed; it was carried by the officer into another room, and signed and acknowledged by the • plaintiff; and then, in full view of Dukes, and while standing in such situation as that he saw or could have seen the act, the justice of the peace handed to Wood both deeds, then perfect in form, and immediately thereafter Wood handed them to the plaintiff’. Not only was no objection made by Dukes, but he recognized the validity of the delivery in a number of subsequent conversations. Indeed, his whole conduct before and at the time he signed the deed, and subsequently, is inconsistent with any other theory than that he intended, when he signed the deed and passed it into the hands of the justice of the peace, to deliver it to the trustee, to the end that the plaintiff should then and there be invested with the title to the premises, and full and final custody of the deeds. Moreover, the plaintiff' retained the deeds, from the time of their execution until the larger part of a year had elapsed, and that, too, with the knowledge and assent of Dukes.

As Dukes intentionally parted with all dominion over the deed to the trustee, with intent that the title, and the custody of the instrument, should then pass to the trustee, and from him to the plaintiff, who at the time accepted the conveyance, a sufficient delivery is shown by what then occurred; for, in a deed of this character, “the assent of the mind of the grantor that the grantee have the deed, is the great inquiry; and evidence of that, if existing, controls the question of delivery.” Brown v. Brown, 1 Wood. & M. 325, 332; Methodist Church v. Jaques, 1 Johns. Ch. 450; s. c., 17 Johns. 548.

Besides, “ a delivery may he made good by a subsequent assent, though originally invalid for want of it, upon the principle, Omnis ratihabitio mandato azquiparatur.” 3 Wash. R. Prop. (4 ed.) 288.

We are of opinion, therefore, that upon the evidence submitted to the district court, the delivery was, prima facie, complete.

The remaining question is as to the destruction of the deeds. The general rule undoubtedly is, that when the instrument conveying an estate -has taken effect, its destrue-, tion by the parties will be ineffectual, even if they intended thereby to revest the estate in the grantor. Raynor v. Wilson, 6 Hill (N. Y.), 469, note; Cranmer v. Porter, 41 Cal. 462; Kimball v. Greig, 47 Ala. 230; 2 Wait’s Act. & Def. 509. Our own cases support the same view. Starr v. Starr, 1 Ohio, 321; Baldwin v. Bank of Massillon, 1 Ohio St. 141. But it has been held, in a large number of cases, that a grantee, who has thus voluntarily consented to the destruction of his deed, shall not have affirmative relief under it. Raynor v. Wilson, note, supra; 2 Wait’s Act. & Def. 510; 3 Wash. R. Prop. (4 ed.) 305. The ground of these decisions, at least the only tenable ground, is, not that the estate revests, but that the grantee is estopped. Farrar v. Farrar, 4 N. H. 191; Trull v. Skinner, 17 Pick. 213.

Under some circumstances, no doubt, we would feel called upon to give effect to such estoppel; but it is unnecessary to say whether we would do so on the facts appearing in any of the cases to which we have been referred. We do not think this is a case for the application of the doctrine. The consent of the grantee to the destruction of the deeds was given reluctantly — simply because her husband desired it. “ She hesitated some time,” says the witness— “ it seems to me some two minutes — and spoke hestatingly, and so low that I could scarcely hear her, ‘ I suppose so, if it is his wish.’” And the request of the husband was induced by the importunity and threats of his relatives, some of whom were his creditors. Subsequently, he regretted that he had made such request, and stated that “ he still intended she should have the land.” Moreover, the property conveyed appears to have been no more than a reasonable provision for the wife, and Dukes died without making any other disposition of the land, so that the rights of no person who stands in the relation of purchaser have intervened.

We are aware that, under some circumstances, a married woman may be estopped. Thus, where she joins her husband in executing a deed of general warranty, she is es-topped by her covenant from setting up a subsequently acquired title. Hill v. West, 8 Ohio, 222; Knight v. Thayer, 125 Mass. 25. So, she may be estopped, in some cases, where her conduct would otherwise directly operate as a manifest fraud. Meiley v. Butler, 26 Ohio St. 535. It is also true, that with respect to her separate property, whether real or personal, she will, in general, be regarded in a court of equity as a feme sole. Hardy v. Van Harlingen, 7 Ohio St. 208. But, with respect to her real estate, the general rule certainly is, that she can only divest her-, self of title in the mode pointed out by statute. Todd v. Pittsburgh, etc., R. Co., 19 Ohio St. 514; Rice v. Railroad Co., 32 Ohio St. 380; Murdock v. Lantz, 34 Ohio St. 589.

In holding that the act of the plaintiff, a feme covert, in consenting to the destruction of the deeds, can not operate against her as an estoppel in pais, we are fully sustained by Wilson v. Hill, 2 Beasley’s Ch. 143, a case decided by a court which sustains an estoppel of the same character as between persons not under disability. Faulks v. Burns, 1 Green’s Ch. 250.

"We have not found it necessary to express any opinion upon the question whether "Wood, the trustee, consented to the destruction of the deeds. The record simply discloses the fact that he was present at the destruction. It is sufficient to say that the consent, if given, was, for the reasons already stated, wholly ineffectual.

As the case was decided by the district court without hearing the testimony of the defendants in support of their defense, and in answer to the testimony offered by the plaintiff, no final judgment in the action can be rendered; but the judgment will be reversed, and the cause remanded for a new trial.

J udgment reversed.  