Carpenter v. Carpenter

124 N.W. 488, 141 Wis. 544, 1910 Wisc. LEXIS 40

Opinion

Maesiiall, J.

It is considered that the findings of fact are protected by the principle that they cannot be disturbed unless they are against the clear preponderance of the evidence.

The foregoing conclusion leaves as verities, that the note and mortgage were executed and placed in escrow to take effect according to their terms only upon the happening of an event which had not transpired when this action was commenced to enforce them; that Aneta B. Carpenter became the owner of the property described therein subject to that situation and that the papers were in form taken out of escrow without her consent by appellant and her son.

The verities suggested are ruled by the familiar principle of law that, in the absence of some efficient element of estop-pel,' and none exists or is claimed to exist here, if an instrument is delivered by the maker to the obligee, or to another for him, or as custodian for both, accompanied by an agreement, verbal or in writing, that it shall not take effect- till some specified event shall have occurred, it will have no validity till the condition shall have been satisfied; but remain in the meantime the same to all intents and purposes as if it had never left the possession of the maker. Mere manual tradition of sucb a paper is one thing, delivery thereof as an element of a contractual obligation -is another. The former without mutual intent to give validity to the paper, but a mutual intent to the contrary, c^oes not constitute the latter. Nutting v. Minnesota F. Ins. Co. 98 Wis. 26, 73 N. W. 432: Thorne v. Ætna Ins. Co. 102 Wis. 593, 78 N. W. 920; State ex rel. Jones v. Chamber of Comm. 121 Wis. 110, 98 N. W. 930; Golden v. Meier, 129 Wis. 14, 107 N. W. 27; Hodge v. Smith, 130 Wis. 326, 110 N. W. 192; Marling v. Fitz Gerald, 138 Wis. 93, 120 N. W. 388; Swanke v. Herdeman, 138 Wis. 654, 120 N. W. 414.

By the Gourt. — Judgment affirmed. -