Furenes v. Eide

80 N.W. 539, 109 Iowa 511

• Court: Supreme Court of Iowa
• Decided: October 24, 1899
• Status: Published

Opinion

Ladd, J.

The deeds from Thor Olson to his three grandchildren were without consideration, and doubtless intended as a gift. Though nearly eighty years of age, and physically very weak, ha appears to have had the full possession of his faculties, and not to have been unduly influenced in what he did. The evidence relating to his care and treatment falls far short of indicating mental incapacity or the exercise of control over him by others. We may, then, limit our-inquiry to ascertaining, whether the deeds were delivered; for a gift, to be effective, must be complete. They were prepared by, and acknowledged-before Clousler, a justice, on Sunday, July 21, 1889, though dated as of the previous day. Where there is no delivery the gift must fall. “Intentions cannot supply it; words cannot supply it; actions cannot supply it. 'It is an indispensable requisite, without which the gift fails, regardless of the consequences.” Thornton Gifts, Section 131; Otto v. Doty, 61 Iowa, 26. The evidence shows that Clousler placed the deeds 1 on the table in the room of the deceased, after they were signed and acknowledged. John Severtson testified that Olson, after Clousler left, directed him to hand the deeds over to- the grantees named therein, and that he took them for the children, and delivered them at the first opportunity. He is not certain when he gave the deed to S. C. Severtson, but his wife'testified he did so Monday, morning, the day before Olson’s death. The deeds to Anna M. Eide and Ellen M. Mickelson did not reach them until the grantor was dead and buried. As appropriate objections were made, evidence of any directions or communications from Olson to Severtson must be excluded, as he is interested in the event of each of the three actions (Code, Section 4604); for, should the plaintiffs succeed, he, as son of Olson’s wife,- with her other heirs, would take, one-half of the property under the will, and he is the sole heir of S. G Severtso'n.....

The defendants insist that a deed is presumed to have been delivered as of the date it bears. But this record conclusively shows that those-to Eide and Miekelson did not reach them till after the grantor's death. These, then, passed no title. Even were Severtson’s evidence received, it showed him only to- have been Olson’s agent. He was employed to cany the deeds to the grandchildren, not to receive them in their behalf. Nor was he to do this after their death. That such an agency is dissolved by the death of the.principal has been repeatedly ruled by this court. Darr v. Darr, 59 Iowa, 81; Lewis v. Kerr, 17 Iowa, 73; Vance v. Anderson, 39 Iowa, 426; Crispin v. Winkleman, 57 Iowa, 523. See, also, Scott v. Lauman, 104 Pa. St. 593; Sessions v. Moseley, 4 Cush. 87.

There was nothing to indicate that this agency was intended to extend after Olson’s death, nor that the deeds could not have been recalled by the grantor at any moment It is not like a case where a third party, taking the papers, may be considered to be acting for the grantee, nor where these are placed in the hands of a third person, to be delivered on the happening of some event after death, as 3 in Dettmer v. Behrens, 106 Iowa, 588. If these deeds, then, were delivered by Severtson, he acted without authority, and, as the grantees did not receive them, until after the grantor’s death, no title: passed to Eide or Miekelson.

Those interested in- the litigation, however, are not prohibited from testifying to: facts from which inferences-may be drawn. McElhenney v. Hendricks, 82 Iowa, 658; Walkley v. Clarke, 107 Iowa, 451. The testimony of Mrs. Severtson that S. 0. Severtson was in-possession of the deed to- him before Olson's death was uncontroverted, and such possession was pmma facie 4 evidence of delivery. This was not overcome by the mere fact that it may have been brought to- him by his father. Blair v. Howell, 68 Iowa, 622; 9 Am. & Eng. Enc. Law, 159. It follows that the decree in the cases against Anna M. Eide and Ellen M. Miekelson must be reversed-,, and that against John Severtson affirmed.