To my mind, the test to be applied to this case is: Did the grantor reserve any right to recall the deed from the possession of the depositary? If she did, there was no delivery and the conveyance failed. If she did not reserve the right to reclaim it, the title passed, subject to grantor's life estate therein. This question cannot be answered by what shethereafter did in reclaiming the deed but it must rather be answered by ascertaining what she had a legal right to do. The testimony on this particular issue is as follows:
Judge Dunbar says:
"A. . . . . She had made a will, and in this will this man, Mr. Cell — by the terms of it he would have received this property on her death, and she came to me and told me she thought it would be more economical or better if she had a deed, and that was the theory on which that deed was made. . . . .
"Yes, I went to her house. I had been requested to go. . . ..
"Q. What did you do there?
"A. Well, I had prepared a deed for her, to Mr. Cell, and I took the deed over there, and she signed it and acknowledged it before me as a notary, . . . .
"Q. Did you give — turn the deed over to Mr. Cell?
"A. No, sir, I did not turn the deed over to Mr. Cell, but what happened was this, that when the deed was acknowledged, and signed, we called in Mr. Cell into the room, and told him
about it, and I showed him the deed, and then Mrs. Sandlin said to me, 'Mr. Dunbar, I want you to take this deed and put it inyour safe and keep it in your safe, and at any time after mydeath that Mr. Cell asks for it, why, give it to him.' " (Italics supplied.)
Now it seems clear, from the testimony of Judge Dunbar, who drew the deed and took the acknowledgment, that his instructions were: "Take this deed and put it in your safe, andkeep it in your safe, and at any time after my death that Mr. Cell asks for it, why give it to him."
Judge Dunbar further says:
"I showed him the deed . . . . I explained to him that Mrs. Sandlin had made this deed and he understood then that it wasto be delivered to him after her death."
It appears to me that the positive instruction given to Judge Dunbar, to keep the deed in his safe until after Mrs. Sandlin'sdeath, and to deliver it to Cell after Mrs. Sandlin's death, precludes any intention, either express or implied, that Mrs. Sandlin reserved the right or privilege of recalling the deed at any time prior to her death; and of course she could not do so afterward. The instruction is plain and unambiguous.
Under a well recognized line of authorities in this country, a deed to real property may be executed and placed in the hands of a depositary or escrow holder for delivery to the grantee after the death of the grantor, and constitutes a present passage of title with a reservation of a life estate in the grantor. (Showalter v. Spangle, 93 Wn. 326, 160 P. 1042;Martin v. Flaharty, 13 Mont. 96, 32 P. 287, 40 Am. St. 415, 19 L.R.A. 242.)
The rule is well stated by the supreme court of Washington in the case first above cited, wherein it is said:
"When, however, the grantor delivers the deed to a third person in escrow to be held until the grantor's death and then delivered to the grantee, the grantor retaining no dominion
or control over it, the delivery is valid, and an immediate estate is vested in the grantee at the date of the delivery of the escrow, subject to the grantor's life estate."
Here it seems that the intention of the grantor at the time of the execution of the deed is unmistakable, that she clearly intended to part with possession and control of the deed and still retain possession of the realty during her lifetime. If that be true, then she could not later change the legal effect of the transaction by changing her mind and recovering possession of the deed from the depositary. (Maxwell v. Harper,51 Wn. 351, 98 P. 756; Burgess v. Fowler, 200 Ala. 196,75 So. 954; St. Clair v. Marquell, 161 Ind. 56, 67 N.E. 693;Johnson v. Cooper, 123 Kan. 487, 255 P. 1112; Cook v.Sadler, 214 Mich. 582, 183 N.W. 82; Dickson v. Miller,124 Minn. 346, 145 N.W. 112.)
The fact that the depositary returned the deed to the grantor on demand does not affect the legal status whatever. He was bound by the instructions given him at the time the deed was deposited with him. (Johnson v. Fleming, 301 Ill. 139,133 N.E. 667; Thompson v. Calhoun, 216 Ill. 161, 74 N.E. 775; White v.Watts, 118 Iowa, 549, 92 N.W. 660; Johnson v. Cooper, supra;Temple v. Coleman, (Tex.Civ.App.) 245 S.W. 264; Loomis v.Loomis, 178 Mich. 221, 144 N.W. 552; Gappmayer v. Wilkenson,53 Utah, 236, 177 P. 763; Maxwell v. Harper, supra.)
Respondent contends that the case of Gonzaga University v.Masini, 42 Idaho 660, 249 P. 93, tends to support the judgment herein. A careful analysis and understanding of that case will disclose that it does not support the contention here made. The really controlling question in that case was written on the face of the deed as follows:
"This deed is given and of no effect until after my death andis not to be recorded until after my death." (Italics supplied.)
By the terms written on the face of that deed, no title could pass until after the grantor's death. (Gonzaga University v.Masini, 42 Idaho 660, 668, 249 P. 93.) In the concluding part of the opinion (p. 677) Chief Justice Lee, who wrote the case, said:
"I have confined the citation of authorities to that class of cases wherein there was a limitation clause in the deed with regard to when the same should become effective, similar to the one in the instant case. It is generally held, as a matter of law, that such instruments do not become effective, or pass any interest of the grantor if delivery takes place after his death, and this is true without regard to what was the intent of the grantor. Practically all of the authorities say that the grantor, having expressed his intention by such words of limitation, parol evidence cannot be received to contradict theterms of the grant as the grantor himself fixed them." (Italics supplied.)
I am in entire accord with the rule stated in the Gonzaga-Masini case and feel confident this case does not come within the authority of that case.
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To my mind, the test to be applied to this case is: Did the grantor reserve any right to recall the deed from the possession of the depositary? If she did, there was no delivery and the conveyance failed. If she did not reserve the right to reclaim it, the title passed, subject to grantor's life estate therein. This question cannot be answered by what shethereafter did in reclaiming the deed but it must rather be answered by ascertaining what she had a legal right to do. The testimony on this particular issue is as follows:
Judge Dunbar says:
"A. . . . . She had made a will, and in this will this man, Mr. Cell — by the terms of it he would have received this property on her death, and she came to me and told me she thought it would be more economical or better if she had a deed, and that was the theory on which that deed was made. . . . .
"Yes, I went to her house. I had been requested to go. . . ..
"Q. What did you do there?
"A. Well, I had prepared a deed for her, to Mr. Cell, and I took the deed over there, and she signed it and acknowledged it before me as a notary, . . . .
"Q. Did you give — turn the deed over to Mr. Cell?
"A. No, sir, I did not turn the deed over to Mr. Cell, but what happened was this, that when the deed was acknowledged, and signed, we called in Mr. Cell into the room, and told him
about it, and I showed him the deed, and then Mrs. Sandlin said to me, 'Mr. Dunbar, I want you to take this deed and put it inyour safe and keep it in your safe, and at any time after mydeath that Mr. Cell asks for it, why, give it to him.' " (Italics supplied.)
Now it seems clear, from the testimony of Judge Dunbar, who drew the deed and took the acknowledgment, that his instructions were: "Take this deed and put it in your safe, andkeep it in your safe, and at any time after my death that Mr. Cell asks for it, why give it to him."
Judge Dunbar further says:
"I showed him the deed . . . . I explained to him that Mrs. Sandlin had made this deed and he understood then that it wasto be delivered to him after her death."
It appears to me that the positive instruction given to Judge Dunbar, to keep the deed in his safe until after Mrs. Sandlin'sdeath, and to deliver it to Cell after Mrs. Sandlin's death, precludes any intention, either express or implied, that Mrs. Sandlin reserved the right or privilege of recalling the deed at any time prior to her death; and of course she could not do so afterward. The instruction is plain and unambiguous.
Under a well recognized line of authorities in this country, a deed to real property may be executed and placed in the hands of a depositary or escrow holder for delivery to the grantee after the death of the grantor, and constitutes a present passage of title with a reservation of a life estate in the grantor. (Showalter v. Spangle, 93 Wn. 326, 160 P. 1042;Martin v. Flaharty, 13 Mont. 96, 32 P. 287, 40 Am. St. 415, 19 L.R.A. 242.)
The rule is well stated by the supreme court of Washington in the case first above cited, wherein it is said:
"When, however, the grantor delivers the deed to a third person in escrow to be held until the grantor's death and then delivered to the grantee, the grantor retaining no dominion
or control over it, the delivery is valid, and an immediate estate is vested in the grantee at the date of the delivery of the escrow, subject to the grantor's life estate."
Here it seems that the intention of the grantor at the time of the execution of the deed is unmistakable, that she clearly intended to part with possession and control of the deed and still retain possession of the realty during her lifetime. If that be true, then she could not later change the legal effect of the transaction by changing her mind and recovering possession of the deed from the depositary. (Maxwell v. Harper,51 Wn. 351, 98 P. 756; Burgess v. Fowler, 200 Ala. 196,75 So. 954; St. Clair v. Marquell, 161 Ind. 56, 67 N.E. 693;Johnson v. Cooper, 123 Kan. 487, 255 P. 1112; Cook v.Sadler, 214 Mich. 582, 183 N.W. 82; Dickson v. Miller,124 Minn. 346, 145 N.W. 112.)
The fact that the depositary returned the deed to the grantor on demand does not affect the legal status whatever. He was bound by the instructions given him at the time the deed was deposited with him. (Johnson v. Fleming, 301 Ill. 139,133 N.E. 667; Thompson v. Calhoun, 216 Ill. 161, 74 N.E. 775; White v.Watts, 118 Iowa, 549, 92 N.W. 660; Johnson v. Cooper, supra;Temple v. Coleman, (Tex.Civ.App.) 245 S.W. 264; Loomis v.Loomis, 178 Mich. 221, 144 N.W. 552; Gappmayer v. Wilkenson,53 Utah, 236, 177 P. 763; Maxwell v. Harper, supra.)
Respondent contends that the case of Gonzaga University v.Masini, 42 Idaho 660, 249 P. 93, tends to support the judgment herein. A careful analysis and understanding of that case will disclose that it does not support the contention here made. The really controlling question in that case was written on the face of the deed as follows:
"This deed is given and of no effect until after my death andis not to be recorded until after my death." (Italics supplied.)
By the terms written on the face of that deed, no title could pass until after the grantor's death. (Gonzaga University v.Masini, 42 Idaho 660, 668, 249 P. 93.) In the concluding part of the opinion (p. 677) Chief Justice Lee, who wrote the case, said:
"I have confined the citation of authorities to that class of cases wherein there was a limitation clause in the deed with regard to when the same should become effective, similar to the one in the instant case. It is generally held, as a matter of law, that such instruments do not become effective, or pass any interest of the grantor if delivery takes place after his death, and this is true without regard to what was the intent of the grantor. Practically all of the authorities say that the grantor, having expressed his intention by such words of limitation, parol evidence cannot be received to contradict theterms of the grant as the grantor himself fixed them." (Italics supplied.)
I am in entire accord with the rule stated in the Gonzaga-Masini case and feel confident this case does not come within the authority of that case.
Apparently all the justices are in substantial accord as to the law governing the delivery of an executed deed to a depositary for subsequent delivery to the grantee after the death of the grantor. The majority are agreed that the judgment must be reversed, while Justices Budge and Morgan hold that it should be affirmed. Two of the majority think that the reversal should be accompanied with instructions to enter judgment for appellant, but a majority are not so agreed.
In view of the difference of opinion, as to the effect of the evidence in the case, we have concluded to reverse the judgment and remand the case to the trial court, with instructions to hear any further evidence that either party may desire to submit, on the question of the delivery of the deed to the depositary; and the intent of the grantee as to whether she intended at the time of execution and delivery of the deed to reserve the right to recall or revoke it; and to make findings and to enter judgment accordingly. It is accordingly so ordered, with costs to follow the result of case in the lower court.
I am authorized to say that Justice Holden concurs with me in this opinion.