Chaudoir v. Witt

170 N.W. 932, 170 Wis. 556, 1920 Wisc. LEXIS 4

• Court: Wisconsin Supreme Court
• Decided: February 10, 1920
• Status: Published

Opinions

The following opinion was filed March 4, 1919:

Winslow, C. J.

There is but one serious question in this case, and that is the question whether the finding of the trial -court to the effect that the deeds in question were delivered with intent to presently convey the property is sustained by the evidence,' and we approach this question mindful of the principle that the findiiig must be sustained unless it be against the clear preponderance of the evidence.

The legal principles applicable to the case are comparatively simple and free from doubt, and may be briefly recapitulated as follows: A deed is of no effect until delivered. The delivery may be by actual tradition of the document to the grantee or to some third person for him, or it may be by other, acts deemed in law to amount to the same thing; but in either case there must be the intent presently to pass the title. The manual possession of the instrument by the grantee creates a presumption of delivery, which, however, may be overcome by evidence showing that the possession came about without intent to pass title but to accomplish some other purpose. A secret intent on the part of the grantor that title shall not pass when the deed is manually given into the possession of the grantee will not prevent the passing of title, but if the intent on both sides be that the deed shall serve merely ,as a testamentary document and is to remain subject to the grantor’s control and not take effect during his lifetime, it will not pass title even though physically handed to the grantee. Prutsman v. Baker, 30 Wis. 644; Rogers v. Rogers, 53 Wis. 36, 10 N. W. 2; Curry v. Colburn, 99 Wis. 319, 74 N. W. 778; Butts v. Richards, 152 Wis. 318, 140 N. W. 1; Zimmerman v. Zimmerman, 165 Wis. 146, 161 N. W. 369; Wilson v. Wilson, 158 Ill. 567, 41 N. E. 1007; Oswald v. Caldwell, 225 Ill. 224, 80 N. E. 131; Roup v. Roup, 136 Mich. 385, 99 N. W. 389; Rountree v. Smith, 152 Ill. 493, 38 N. E. 680.

Careful study of the evidence in this case convinces us that the idea of all the parties to the transaction was that the . deeds were to operate as testamentary documents only and were to have no effect during Witt’s lifetime. It would serve no good purpose to repeat the evidence in this opinion; it will be found quite fully set forth in the statement of facts. It is sufficient now to say that not only the direct evidence, but all of the significant circumstances surrounding the transaction and occurring since that time, confirm the statement of Mr. Suelflow, namely, that the property was not to be Mrs. Witt’s until after he (Mr. Witt) was dead, and was to be his as long as he lived. We are convinced that the findings to the effect that the deeds were delivered with the intention of presently conveying the property are contrary to the clear preponderance of the evidence.

The respondents challenge the correctness of the court’s finding to the effect that the deed executed March 23, 1916, by Carolina Witt, naming the defendants as grantees, was never delivered to them. In the view we have taken of the case this question becomes immaterial, but in any event we see no reason to doubt the correctness of the finding. Some questions are raised by the respondents relating to the practice adopted in the proceedings for revival of the action, but we have been unable to see that the rulings were erroneous and it does not seem necessary to state the contention at length.

By the Court. — Judgment reversed, and action remanded with directions to enter judgment for the plaintiff in accordance with this opinion.