Jones v. Roberts

65 Me. 273, 1876 Me. LEXIS 53

• Court: Supreme Judicial Court of Maine
• Decided: March 1, 1876
• Status: Published

Opinion

Peters, J.

The deed of John. A. Jones to the plaintiff was properly received in evidence. The deed was executed out of the state. The person receiving it and recording it here testified that he did not know the whereabouts of the subscribing witnesses, or that they were within this state. Thereupon the court allowed the deed to be read, upon proof of the handwriting of the grantor. This amounted to a decision of the judge at nisi prius, that as a matter of fact the subscribing witnesses were not, at the time of the trial, within the jurisdiction of the court, and to this decision of fact exceptions do not ordinarily lie. The secondary evidence was therefore admissible. Woodman v. Segar, 25 Maine, 90.

The defendant objects to the validity of one of the deeds under which the plaintiff claims, that it was recorded before it was delivered, and was not recorded afterwards. This objection is of no avail. When a grantee named in a deed, already registered, takes a delivery of such deed, he accepts it and its registration with the same effect thenceforward as if recorded by him at the date of its delivery. Parker v. Hill, 8 Metc., 447.

Another point is taken. As to one of the deeds under which .the plaintiff claims title to the locus, the jury were substantially instructed, inter alia, that if the only purpose of the plaintiff 5s grantor in executing the deed was to deprive his future wife, to whom he was then engaged, of her dower in the premises, that fact would not give to the conveyance such a character as would authorize subsequent creditors to impeach it on the ground of fraud, although a voluntary conveyance without any pecuniary consideration therefor. In this connection, it must be borne in mind that the judge had already fully and favorably to the defendant instructed the jury as to the effect of the conveyance, provided the jury should find that there was a secret trust intended by the parties to the deed. No fault can be found with this instruction. The grantee receives the deed as a gift. No secret trust is intended or established. The title is never reclaimed by the grantor, nor attempted to be. We do not understand that the future creditors of the grantor have any reserved rights in this estate, because the grantor preferred to give it to a son rather than that dower in it should enure to a person who was not then his wife. The case of Livermore v. Boutelle, 11 Gray, 217, cited, (see similar case of Bailey v. Bailey, 61 Maine, 361,) does not apply to these facts. The wife is not a party here. If a fraud was meditated against her, it was not against anybody else. But the cases of Baker v. Chase, 6 Hill, 482, and Rowland v. Rowland, 2 Sneed, Tenn., 543, do apply exactly, and are in accordance with our decision here. Exceptions overruled.

Appleton, C. J., Walton, Barrows, Daneorth and Virgin, JJ., concurred.