
    [No. 13673.
    Department One.
    May 2, 1917.]
    Sherman W. Eves et al., Respondents, v. George R. Roberts et al., Appellants.
      
    
    Deeds — Delivery—Presumption Prom Possession — Husband and Wife. Where husband and wife simultaneously executed deeds of ■property to each other, with intent to pass the title to the survivor only upon the death of one of them, there is no presumption of delivery from the fact of possession of the deed, but actual delivery with intent to make the deed presently operative must be shown in order to pass title, as against heirs.
    Equity — Laches — Statute of Limitations. The doctrine of equitable laches will not defeat an action by heirs to set aside a deed which was intended to defeat the statute of wills, and void for want of delivery, where the action was brought within three years after the heirs became of age and within the statutory period prescribed by Rem. Code, § 158.
    Appeal from a judgment of the superior court for Asotin county, Miller, J., entered January 19, 1915, upon findings in favor of the plaintiffs, in an action to quiet title, tried to the court.
    Affirmed.
    
      Sturdevant Sf Bailey, for appellants.
    
      E. J. Doyle, for respondents.
    
      
       Reported in 164 Pac. 915.
    
   Chadwick, J.

— Reuben H. Eves and his wife, Mary J. Eves, were the owners of a certain tract of land in Vineland, Asotin county, Washington. Mary Jane Eves died on or about October 19, 1904, leaving her surviving her husband and four children. Two of the children, Sherman W. Eves and Alvin L. Eves, were minors. On September 28, 1903, Mrs. Eves and her husband had mutual deeds drawn by a notary public. The form of the deeds was such that each conveyed to the other as if the grantor was the sole owner. There can be no question that the parties intended, at the time, to defeat the statute of wills and make an administration of the estate of the one dying first unnecessary. They said, according to one witness, that the property was so fixed that their children would not get it; and according to another, it was so fixed that they would not have to pay out anything for lawyers’ fees if one of them should drop off.

The record title was not encumbered at the time by the recordation of either deed. Reuben H. Eves testifies that each deed, when prepared, was given to the grantor; that is, he retained the deed executed by himself, and Mrs. Eves retained the deed that she had executed; that they took them home and placed them in a bureau drawer. He further testified that he left home shortly after the time when the deeds were executed, and his absence continuing over the time appointed for his return, his wife took the deed which he had executed out of its place of deposit and put it of record. Shortly after the death of his wife, Reuben H. Eves took the deed which his wife had executed and filed it for record. This was the state of the record title on the 15th day of September, 1910, when Reuben H. Eves and his later wife, Jane P. Eves, united in a conveyance of the property to George R. Roberts. No administration was ever had of the estate of Mary J. Eves. This action was brought by her children to recover an one-half interest in the property.

From a decree dismissing the action as to two of the heirs, who were of age at the time of the death of Mrs. Eves and against whom the statute of limitations had run, and a holding that the respondents Sherman W. Eves and Alvin L. Eves were each entitled to an undivided one-eighth of the property, appellants have prosecuted this appeal.

It seems to us that the only question is whether the deeds were delivered. That there was no present intention to deliver them is best evidenced by the circumstances attending their form and execution. Each purported to convey the whole title. They were executed simultaneously, and had they been filed for record at the same time, the one would have cancelled the other. The title would have been unaffected. The taking of the deed made by Reuben H. Eves from its receptacle by Mrs. Eves, and the filing of it during his absence, rather negatives the presumption of delivery, for if it had been delivered when executed or before Mr. Eves’ departure, Mrs. Eves would probably have recorded it at once instead of waiting until she had become nervous and worried over the continued absence of her husband.

There is no circumstance from which a delivery by the husband to the wife can be inferred that would not sustain the same inference that the deed by the wife was, at the same time, delivered to the husband. It follows, then, that the recording of the deed from the husband to the wife would convey no title as against an outstanding deed simultaneously executed and simultaneously delivered by the wife to the husband.

We understand the rule to be that when a deed, formally executed and acknowledged, is found in the possession of the named grantee, a delivery will be presumed, and if one would overcome such presumption he must do so by testimony that is strong and convincing. Richmond v. Morford, 4 Wash. 337, 30 Pac. 241, 31 Pac. 513. See, also, 8 R. C. L. 999; 13 Cyc. 733; Jackson v. Lamar, 58 Wash. 383, 108 Pac. 946; In re Slocum's Estate, 83 Wash. 158, 145 Pac. 204; Brown Brothers Lumber Co. v. Preston Mill Co., 83 Wash. 648, 145 Pac. 964,

But that presumption cannot be applied with all its force, or even in a measurable degree, where a husband and wife make mutual deeds to the same property with intent to pass title in the event of the death of one or the other, and, in which event, the deed to the one deceased is not to be used as a conveyance.

Whether such conveyances could be sustained as deeds if placed in some escrow, independent of the parties, we are not called upon to decide. We are quite satisfied to hold, however, that where, as in this case, we have two deeds made simultaneously, and for the avowed purpose of defeating the jurisdiction of the courts and expense of administration upon the estate, that the presumption is against delivery, and that the one depending upon it must show the fact by testimony rising to the same dignity as that required to overcome the presumption attending the possession of a deed, formally executed, by a stranger to the title.

The circumstances of this case invite the application of the same rules that apply in cases where one comes into possession, or discloses the possession, of a deed after the death of a grantor, and his possession is' challenged by one who would take under a will or the statutes of descent. We but recently had occasion tó review these principles. In Showalter v. Spangle, 93 Wash. 326, 160 Pac. 1042, we said:

“In every case there must be something from which it clearly appears that there was an intention to make the deed a presently operative conveyance vesting title in the grantee within the grantor’s lifetime. Atwood v. Atwood, 15 Wash. 285, 46 Pac. 240.”

When Mrs. Eves recorded the deed in which she was named as grantee, she either became the sole owner, for one spouse can convey to another (Rem. Code, § 8766), or the deed accomplished no more than to cloud the record, depending entirely upon whether the deed has been delivered. That it lacked the element of delivery is best evidenced by the act of Eves, who, in seeming obedience to his first intention and understanding that the deeds were to be operative only as testamentary writings, placed his deed of record after the death of his wife.

We have not overlooked the fact that the reputation of Eves for truth and veracity was successfully attacked, but the decree of the court may be sustained by reference to the exhibits and collateral circumstances which do not depend upon Eves’ testimony.

Counsel charge respondents with laches. They brought their action within three years after coming of age, and are within the statute. Rem. Code, § 158. Laches is an equitable doctrine and will not ordinarily be resorted to to defeat an action brought within the limit of an express statute. Cordiner v. Finch Inv. Co., 54 Wash. 574, 103 Pac. 829; Roger v. Whitham, 56 Wash. 190, 105 Pac. 628, 134 Am. St. 1105; McDowell v. Beckham, 72 Wash. 224, 130 Pac. 350.

We find no error and the decree is affirmed.

Ellis, C. J., Morris, Main, and Webster, JJ., concur.  