Gilmer v. Anderson

Michigan Court of Appeals

Gilmer v. Anderson

190 N.W.2d 708, 34 Mich. App. 6, 1971 Mich. App. LEXIS 1547

CourtMichigan Court of Appeals

DecidedMay 21, 1971

DocketDocket 10127

StatusPublished

Cited by2 cases

This text of 190 N.W.2d 708 (Gilmer v. Anderson) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gilmer v. Anderson, 190 N.W.2d 708, 34 Mich. App. 6, 1971 Mich. App. LEXIS 1547 (Mich. Ct. App. 1971).

Pincite

Opinions

Danhof, P. J.

This is an action brought by-plaintiffs to determine title to certain parcels of real estate. The defendant, Robert C. Anderson, is an attorney who has in his possession certain instruments purporting to convey to plaintiffs the right, title, and interest of the late Charles N. Humphries, in certain properties he owned. The intervening defendant is the administrator of the estate of deceased and disputes the effect of the instruments, claiming they were never delivered.

On August 1, 1967, attorney Anderson was summoned by the deceased to draw up certain instruments relating to the property he owned. On August 2, 1967, the deceased again summoned Anderson and indicated that he wanted several changes made. On August 8, 1967, Anderson visited the deceased in the hospital at which time the instruments were executed. Anderson retained the instruments. The deceased gave Anderson no specific instructions concerning the instruments. However, the deceased did state “Let’s not be hasty”. The plaintiffs contend that the delivery of the instruments to the attorney was sufficient delivery to pass title.

In a detailed and scholarly opinion the trial court held that there had not been delivery. This case is equitable in nature and we review de novo; however, we give considerable weight to the findings of [10]*10the trial court. Biske v. City of Troy (1969), 381 Mich 611.

Delivery is a matter of the intention of the grant- or as manifested by the circumstances surrounding the acts. McMahon v. Dorsey (1958), 353 Mich 623. In Hooker v. Tucker (1953), 335 Mich 429, 436, the Court stated:

“ ‘A delivery to a third person does not authorize a presumption that it is done with the intention of passing the title. The facts and circumstances attending the transaction must be such as to show that the grantor intended that the deed should be delivered by the custodian to the grantee. Every such case must be determined by the intention of the grantor.’ Trask v. Trask [1894], 90 Iowa 318 (57 NW 841, 48 Am St Rep 446), as quoted with approval in Thomas v. Sullivan (1904), 138 Mich 265.

“ ‘As a general rule, the delivery of a deed to a third person must be for, and on behalf of, the grantee in order to constitute a delivery to the latter, and a delivery to one acting exclusively as the grantor’s agent is ineffectual to transfer title to the grantee.

“ ‘It follows that to constitute a delivery to the grantee, there must be either expressed or implied instructions authorizing the depositary to make such delivery.’ 26 CJS, p 242.”

On the record before us we are not disposed to overturn the trial court’s finding that there had not been delivery. The deceased, who was not unfamiliar with real estate transactions, entrusted the instruments to his agent and did not give him instructions to deliver them. The trial court did not err when it determined that the decedent did not intend a completed legal act.

Affirmed, costs to the defendant.

|

McGregor, J., concurred.

Free access — add to your briefcase to read the full text and ask questions with AI

Danhof, P. J.

This is an action brought by-plaintiffs to determine title to certain parcels of real estate. The defendant, Robert C. Anderson, is an attorney who has in his possession certain instruments purporting to convey to plaintiffs the right, title, and interest of the late Charles N. Humphries, in certain properties he owned. The intervening defendant is the administrator of the estate of deceased and disputes the effect of the instruments, claiming they were never delivered.

On August 1, 1967, attorney Anderson was summoned by the deceased to draw up certain instruments relating to the property he owned. On August 2, 1967, the deceased again summoned Anderson and indicated that he wanted several changes made. On August 8, 1967, Anderson visited the deceased in the hospital at which time the instruments were executed. Anderson retained the instruments. The deceased gave Anderson no specific instructions concerning the instruments. However, the deceased did state “Let’s not be hasty”. The plaintiffs contend that the delivery of the instruments to the attorney was sufficient delivery to pass title.

In a detailed and scholarly opinion the trial court held that there had not been delivery. This case is equitable in nature and we review de novo; however, we give considerable weight to the findings of [10]*10the trial court. Biske v. City of Troy (1969), 381 Mich 611.

Delivery is a matter of the intention of the grant- or as manifested by the circumstances surrounding the acts. McMahon v. Dorsey (1958), 353 Mich 623. In Hooker v. Tucker (1953), 335 Mich 429, 436, the Court stated:

“ ‘A delivery to a third person does not authorize a presumption that it is done with the intention of passing the title. The facts and circumstances attending the transaction must be such as to show that the grantor intended that the deed should be delivered by the custodian to the grantee. Every such case must be determined by the intention of the grantor.’ Trask v. Trask [1894], 90 Iowa 318 (57 NW 841, 48 Am St Rep 446), as quoted with approval in Thomas v. Sullivan (1904), 138 Mich 265.

“ ‘As a general rule, the delivery of a deed to a third person must be for, and on behalf of, the grantee in order to constitute a delivery to the latter, and a delivery to one acting exclusively as the grantor’s agent is ineffectual to transfer title to the grantee.

“ ‘It follows that to constitute a delivery to the grantee, there must be either expressed or implied instructions authorizing the depositary to make such delivery.’ 26 CJS, p 242.”

On the record before us we are not disposed to overturn the trial court’s finding that there had not been delivery. The deceased, who was not unfamiliar with real estate transactions, entrusted the instruments to his agent and did not give him instructions to deliver them. The trial court did not err when it determined that the decedent did not intend a completed legal act.

Affirmed, costs to the defendant.

|

McGregor, J., concurred.

Cite This Page — Counsel Stack

Bluebook (online)

190 N.W.2d 708, 34 Mich. App. 6, 1971 Mich. App. LEXIS 1547, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilmer-v-anderson-michctapp-1971.

Opinions

Related

Cite This Page — Counsel Stack