
    Charles Wuester and T. J. Madden v. Maggie Folin.
    No. 11133.
    1. Conveyance — Delivery of Deed. Before a deed can operate as a valid transfer of title there must be a delivery of the instrument which becomes effective during the life of the grantor.
    2. - Actual Delivery in Person is not Essential. It is not essential that the grantor deliver the instrument to the grantee in person. An unconditional delivery to a third person for the use and benefit of the grantee, where the grantor intends to divest himself of the title and to part with all control over the instrument, is ordinarily a sufficient delivery, although there was no formal acceptance of the deed by the grantee until after the death of the grantor.
    3. -Acceptance Presumed. A formal acceptance by the grantee is not required. Where the grant is clearly beneficial to the grantee his acceptance of it is to be presumed, in the absence of proof to the contrary, and this presumption is not overcome by anything short of the actual dissent of the grantee.
    4. - Rights of an Alien Woman. An alien woman who in good faith has become a resident of the United States may, under chapter 3, Laws of 1891 (Gen. Stat. 1897, ch. 51), take a defeasible title in land and hold the same for a period of six years, and if during that time she complies with the provisions of the statute she may acquire an indefeasible title in it as against an attack by the state or any other party.
    Error from Marshall district court; R. B. Sdilman, judge.
    Opinion filed March 11, 1899.
    Affirmed.
    
      
      M. W. Terry, T. J. Madden, and Waggener, TIorton & Orr, for plaintiffs in error.
    
      W. W. Redmond, Gal. T. Mann, and E. A. Berry, for defendant in error.
   The opinion of the court was delivered by

Johnston, J. :

This was an action to quiet the title to a tract of land which was claimed by Maggie Folin, plaintiff below, under a deed executed by Mark Mad-, den on October 14/1895, purporting to convey the land to her, and claimed by the defendant T. J. Madden under a will made two days later, in which the land was bequeathed to him by Mark Madden. Charles Wuester claimed under a lease of the land made by Mark Madden in his lifetime. The trial court, after hearing a great deal of testimony as to the execution and delivery of the deed, and as to the right of Maggie Folin to take and hold the land, found generally in her favor, and gave judgment accordingly.

One of the principal points of contention at the trial was whether there was a valid and effectual delivery of the deed to Maggie Folin, and, although the delivery was upheld by the findings of the trial court, its sufficiency is again challenged on this review. It appears that Mark Madden was the owner of 200 acres of land and some other property in Marshall county. On October 14,1895, he asked his pastor, Father Hurley, to request H. K. Sharpe, an attorney living in the county, to call upon him. When Sharpe called he was informed by Madden that he desired to convey 100 acres of land to his niece, Maggie Folin, who at that time he thought lived in Louisville, Ky., and the remaining 100 acres he desired to convey to his nephew, James O'Toole. Sharpe prepared the deeds in accordanee with his directions, and he executed both of them in the presence of witnesses. He indicated a desire to have the conveyances take effect at once, and directed Sharpe, in whose hands the deeds were left, to have them recorded at once. The deeds were filed for record on October 17, 1895, and Sharpe undertook to notify the grantees of the conveyances that had been made. On October 16, 1895, the will mentioned was made by Mark Madden, in which the deeds were referred to as wills, and it contained a provision devising all of the land to his nephew,» T. J. Madden. On October 27, 1895, Mark Madden died without having made any other or further disposition of his property.

It appears that when the conveyance was made to Maggie Folin, Mark Madden had never seen her, and although he thought she was in this country she was in fact in Ireland, and remained there for several ■months afterward. She was a native of Ireland who came to this country in 1891 and remained here until May, 1895, when, learning that her mother was sick, she returned to Ireland to take care of her. After her mother died, in September, 1895, she left Ireland and returned to this country. While she was in correspondence with her uncle, Mark Madden, she never met him, and never learned of the conveyance of the land to her until some time after his death. Sharpe notified her of the conveyance and exercised control over the land until she arrived and took actual possession of the same. It thus appears that the deed in question was executed and placed in the hands of Sharpe before the will was made, and if it was completed as to delivery and acceptance it would seem to be sufficient to convey title. It is in due form, and there is no claim of undue influence being exercised upon the grantor to obtain the conveyance, or that he was in any way incapacitated to make it. Tlie testimony tends to show that at the time of the conveyance he desired and intended to vest title in his niece, and it would seem that he accomplished his purpose unless there was in fact no delivery or the grantee was incapable of taking the title.

Much stress is placed on the fact that the deed was not placed in the hands of Maggie Folin until after the death of Madden, and also that she had no knowledge of the gift or conveyance during his lifetime. It is argued that the acceptance by the grantee is essential to a complete delivery, that there was no actual acceptance by her, and that unless the conveyance was complete in the lifetime of the grantor no title could pass to her. Before a deed can operate as a valid transfer of title there must be a delivery of the instrument, and it must be effected during the life of the grantor. It is not essential, however, for the grantor to deliver the instrument to the grantee in person. An unconditional delivery to a third person for the use and benefit of the grantee, where the grantor intends to divest the title and to part with all control over the instrument, is ordinarily a sufficient delivery. What constitutes a sufficient delivery" is largely a matter of intention, and the usual test is, Did the grantor by his acts or words, or both, manifest an intention to make the instrument his deed, and thereby divest himself of title? When the deed has passed beyond the control of the grantor, and he has placed it in the hands of a third person with a'declared or manifest purpose to make a present transfer of the title, a formal acceptance by the grantee is not required. Where the grant is clearly beneficial to the ‘grantee, his acceptance of it is to be presumed in the absence of proof to the contrary, and it has been held that this presumption is not overcome by anything short of the actual dissent of the grantee. (Lessee of Mitchell v. Ryan, 3 Ohio St. 386; 1 Devlin, Deeds, 287; 9 A. & E. Encycl. of L., 2d ed., 162, and cases cited.)

The general finding of the court requires us to indulge every inference favorable to the grantee which may be drawn from the testimony. In the light of that finding, it must be held that when the deed was placed in Sharpe’s hands it was done with the intention that it take effect at once, and that the grantor then parted with all dominion and control over it. Sharpe only acted as a scrivener and custodian, and was not the agent of the grantor in the sense that his possession of the deed was the grantor’s possession. In addition to the expressed purpose of placing the title to the land in his niece, the grantor directed Sharpe to place the deed on record. Although not of itself a delivery, it strongly tends to show the purpose of the grantor not only to surrender control and dominion' of the deed, but also to make a present and complete transfer of title to the grantee. As the case stands, we have a deed of gift clearly beneficial to the grantee placed by the grantor in the hands of a stranger for the benefit of the grantee, the grantor having parted with all control over the deed, and who by his words and acts when the deed was delivered to the stranger clearly indicated a purpose to transfer the title to the grantee at once ; and when the grantee subsequently learned of the conveyance she accepted the deed and claims under it. In such a case the delivery is deemed to be complete and the acceptance to take effect from the original delivery to the third person for the use of the grantee.

It is next contended that the deed was inoperative and void because Maggie Folin was incapable of- acquiring title to any real estate in Kansas by purchase or otherwise. It is contended that she was.an alien in every sense, a non-resident of the state and of the United States, and that by virtué of the provisions of chapter 3, Laws of 1891 (Gen. Stat. 1897, ch.. 51)-, she is precluded from taking by purchase, gift--,or otherwise any of the land owned by Mark Madden iri his lifetime. It is conceded that Maggie Folin was of foreign birth and not naturalized when the deed was executed, but under the testimony and the finding'o.f the court it must be held that she has been a resident of the United States' since 1891, with the fixed purpose' of making this country her permanent home-. She is therefore to be regarded as a resident alien, and it appears that she has undertaken to. comply with the statutes in regard to the taking and holding of property by resident aliens.

It will be observed that section 17 of the -bill of rights, as amended in 1888, does not prohibit the-taking or holding of lands by aliens, but only provides that their rights in that respect be regulated by law.The act of 1891 undertakes to regulate the rightá of aliens in reference to the .purchase, enjoyment or descent of real property in Kansas. An examination o,f the entire provisions of. the act makes it clear that the-phrase “ non-resident-alien ” used therein has reference to aliens residing beyond the limits of the United States. Sections 3 and 4 of the act provide that resident aliens may take and hold lands in Kansas for at-least a period of six years, provided that they, during: that time, conform to the requirements of the 'act.. An alien resident may, by declaring his intention to> become a citizen of the United States according to the* naturalization laws, take and hold lands for a period! of six years, and an alien female who in good faith has become an actual resident of the United States may take and hold land for a period of six years, and may sell, assign, mortgage or dispose of the same in any manner in which she might do if she were a natural-born citizen of the United States. In case of a male person, it is provided that at the time of acquiring the lands he shall cause a certified copy of his intention to'become a citizen of the United States to be filed in the office of the register of deeds, and in case of a female her affidavit that she is in good faith an actual resident of the United States shall be so .filed. It is provided that if these provisions be not complied with within six years by the alien holders of real estate it shall revert to, escheat and become the property of the state of Kansas, and provision is made for the manner in which the forfeiture may be accomplished.

In our view the law contemplates that alien residents may take a defeasible title in lands and hold the .same for a period of six years, and if compliance be made with the requirements mentioned they will acquire an indefeasible title which will be good even :against the state of Kansas. Many of the courts hold under similar statutes that the title acquired by an alien cannot be questioned by any one except the state, and can be divested only by a 'proceeding brought in behalf of the state for that purpose. This question, however, we need not decide at this time, as it appears that Maggie Folin has made the required affidavit within the prescribed time, and therefore, under sections 3 and 4 of the act, has perfected her title and made it good as against an attack by the state or any other party. On October 15, 1896, she made and filed an affidavit stating that she was in good faith an actual resident of the United States, and had been such resident for more than five years last past, and that during the year 1895 she went to Ireland and was temporarily absent on account of the sickness of her mother, who resided in Ireland, but that she was at that time a bona fide resident of Marshall county, Kansas, and lived on the land in question. The filing of the affidavit under the statute is a. condition subsequent, the performance of which give» her an indefeasible title, and the affidavit referred to' appears to meet the requirements of the law. We therefore feel bound to hold that the defendant in error has acquired a good title to the land and was entitled to have the same quieted against both of the plaintiffs in error.

The judgment of the district court will be affirmed.  