[286]*286The opinion of the court was delivered by
Garrison, J.
In the view that we take of this case it is not necessary to determine whether the deposition of Mr. Bourgeois as to the statements made to him by Mrs. Weaver was properly admitted in evidence or to decide whether she in fact stated to him that her son, Theodore, had made the deed to her to protect his children, and that she was to hold the deed for the children, and had no interest in it excepting to see that Theodore’s children got their father’s share of the farm. Ror the purposes of this appeal it may be assumed not only that Mrs. Weaver made all of these statements, but also that they correctly represented her understanding of the transaction and her attitude and intentions with respect thereto from the day the deed was delivered to her down to the day that its loss was discovered. Assuming all of this to be so the salient fact remains that in 1889 Theodore S. Weaver executed and delivered to his mother, Josephine T. Weaver, the deed in question, which remained in her possession until its loss in 1903, during all of which period the legal title (which must have resided somewhere) was in one or the other of the parties to the said deed. If the title remained in Theodore it is now in his heirs; if it passed to Josephine she, notwithstanding the disappearance of the deed, still holds the title subject to such trusts only as are enforceable under the statute of frauds. Wherever, in fine, the legal title was from the time of the delivery of the deed to that of its disappearance there it now is. Hence, in our judgment, to decide where the title cwas during that period is to decide this case.
The question that is thus fundamental is essentially one of fact and resolves itself into the single inquiry whether the deed that was delivered by Theodore to his mother was accepted by her; or perhaps the question is still narrower, viz., whether after such a lapse of time acceptance of the deed as of the date of its delivery will not be inferred unless some stronger inference points to the opposite conclusion.
That there was a good delivery of the deed is not questioned, nor is it even suggested in proof or in argument that at the [287]*287time of its delivery Mrs. Weaver refused to accept it or that she had any conceivable motive for so doing.
On the contrary, her understanding that the deed was delivered to her in the interest and for the protection of her grandchildren afforded the strongest possible motive for accepting it, so strong indeed as both upon reason and principle to assimilate the transaction with those in which acceptance is to be inferred from the beneficial character of the conveyance. If, however, the grantee’s understanding of the purposes for which the deed was delivered to her is to be ignored because not legally manifested, then the deed for which no consideration passed was, in such legal point of view, a gift, and would, without doubt, have been so treated if attacked by the creditors of the grantor. Erom whichever standpoint therefore the transaction be viewed, it was one to which the inference of the acceptance of a benefit is applicable. It has been held that the delivery of a deed to a third person passed title eo instante upon the ground that, nothing appearing to the contrary, it is to be inferred that a grantee accepts what is for his benefit. Jones v. Swayze, 42 N. J. Law (13 Vr.) 279.
Traurig v. Gelb, 70 Atl. Rep. 352, in which the court of errors and appeals cited Jones v. Swayze as authority for “the rule that the law will presume that a man accepts what is for his benefit,” was a case in which delivery was made to the grantee directíy and not to a third person, and it must be that the inference that obtains when the grantee is not present and is not informed will a fortiori apply when he is both present and acquainted with the contents of the deed and takes it into his possession. Cases illustrative of this rule are collected in 9 Am. & Eng. Encycl. L. 162; see, also, Matheson v. Matheson, 117 N. W. Rep. 755. In addition to, or, if need be, quite independently of, the foregoing consideration, the fact that Mrs. Weaver retained the deed for fourteen years after its delivery to her by her son, raises an inference of her having accepted the deed that can hardly be said to be weakened, and that certainly is not overcome by the fact that she did not give publicity to a family matter by spreading the deed on the public records. The declarations of the grantee that Theodore’s share belonged to [288]*288his children,’ while evidential of the purpose for which the deed was made to and held by her, have no bearing upon the question as to where,' upon an uncontroverted state of facts, the legal title resided. The inference of acceptance arising from lapse of time and the other circumstances adverted to is so strong and so entirely unrebutted that the only conceivable hypothesis at all consistent- with the retention of the title by Theodore during the fourteen years that followed his delivery of the deed is that during all of such period such instrument remained in a sort of escrow so that the legal title did not pass under it until the happening of some event or the performance of-some condition. Such hypothesis, however aptly it may account for the conduct of the parties, runs directly counter to the imperative rule that a deed cannot be in escrow with its grantee. The soundness of Chief-Justice Beasley’s exposition of this subject in Ordinary v. Thatcher, 41 N. J. Law (12 Vr.) 403, has never been questioned in this state. The rule everywhere is that the delivery of a deed to its grantee cannot be in escrow, but is, regardless of such purpose, a good delivery of the deed. 11 Eng. & Am. Encycl. L. 333, “Escrow;” 16 Oyc. 561, “Escrows.”
The stability of all titles to land rests at bottom upon this rule.
The conclusion, therefore, seems to us to be irresistible that from 1889 to 1903 the legal title to Theodore’s interest in the farm was in the grantee of his deed, viz., Josephine T. Weaver, the appellant. This conclusion must also have been assumed by the learned vice-chancellor before he could consistently regard Mrs. Weaver in-the light of a donor of such interest. Por when he says that Mrs. Weaver “was making a gift to her children,” and was “in the position of a donor whose gift was completely executed,” he was in effect assuming her acceptance of the deed without which she would have had nothing to donate and could not have held the position of a donor. Excepting as such acceptance is thus implied we cannot adopt the reasoning by which the conclusion is reached that an executed gift resulted from the destruction by Mrs. Weaver of the deed, chiefly from the consideration that there is no express finding of fact that Mrs. Weaver did destroy the deed or any testimony that would sup[289]*289port such a finding. The other ground of the decision below, viz., that of the voluntary execution of an unenforceable trust seems to involve the same implication as to the acceptance of the deed. Eor a trust, whether enforceable or unenforceable, must exist in order to be a trust, and, in order to exist, must be supported by the legal estate which in the present case could have become vested in Mrs. Weaver in no other way than by her acceptance of Theodore’s deed. Further than this we cannot go with the court below, not only because it was not proved that Mrs.
Free access — add to your briefcase to read the full text and ask questions with AI
[286]*286The opinion of the court was delivered by
Garrison, J.
In the view that we take of this case it is not necessary to determine whether the deposition of Mr. Bourgeois as to the statements made to him by Mrs. Weaver was properly admitted in evidence or to decide whether she in fact stated to him that her son, Theodore, had made the deed to her to protect his children, and that she was to hold the deed for the children, and had no interest in it excepting to see that Theodore’s children got their father’s share of the farm. Ror the purposes of this appeal it may be assumed not only that Mrs. Weaver made all of these statements, but also that they correctly represented her understanding of the transaction and her attitude and intentions with respect thereto from the day the deed was delivered to her down to the day that its loss was discovered. Assuming all of this to be so the salient fact remains that in 1889 Theodore S. Weaver executed and delivered to his mother, Josephine T. Weaver, the deed in question, which remained in her possession until its loss in 1903, during all of which period the legal title (which must have resided somewhere) was in one or the other of the parties to the said deed. If the title remained in Theodore it is now in his heirs; if it passed to Josephine she, notwithstanding the disappearance of the deed, still holds the title subject to such trusts only as are enforceable under the statute of frauds. Wherever, in fine, the legal title was from the time of the delivery of the deed to that of its disappearance there it now is. Hence, in our judgment, to decide where the title cwas during that period is to decide this case.
The question that is thus fundamental is essentially one of fact and resolves itself into the single inquiry whether the deed that was delivered by Theodore to his mother was accepted by her; or perhaps the question is still narrower, viz., whether after such a lapse of time acceptance of the deed as of the date of its delivery will not be inferred unless some stronger inference points to the opposite conclusion.
That there was a good delivery of the deed is not questioned, nor is it even suggested in proof or in argument that at the [287]*287time of its delivery Mrs. Weaver refused to accept it or that she had any conceivable motive for so doing.
On the contrary, her understanding that the deed was delivered to her in the interest and for the protection of her grandchildren afforded the strongest possible motive for accepting it, so strong indeed as both upon reason and principle to assimilate the transaction with those in which acceptance is to be inferred from the beneficial character of the conveyance. If, however, the grantee’s understanding of the purposes for which the deed was delivered to her is to be ignored because not legally manifested, then the deed for which no consideration passed was, in such legal point of view, a gift, and would, without doubt, have been so treated if attacked by the creditors of the grantor. Erom whichever standpoint therefore the transaction be viewed, it was one to which the inference of the acceptance of a benefit is applicable. It has been held that the delivery of a deed to a third person passed title eo instante upon the ground that, nothing appearing to the contrary, it is to be inferred that a grantee accepts what is for his benefit. Jones v. Swayze, 42 N. J. Law (13 Vr.) 279.
Traurig v. Gelb, 70 Atl. Rep. 352, in which the court of errors and appeals cited Jones v. Swayze as authority for “the rule that the law will presume that a man accepts what is for his benefit,” was a case in which delivery was made to the grantee directíy and not to a third person, and it must be that the inference that obtains when the grantee is not present and is not informed will a fortiori apply when he is both present and acquainted with the contents of the deed and takes it into his possession. Cases illustrative of this rule are collected in 9 Am. & Eng. Encycl. L. 162; see, also, Matheson v. Matheson, 117 N. W. Rep. 755. In addition to, or, if need be, quite independently of, the foregoing consideration, the fact that Mrs. Weaver retained the deed for fourteen years after its delivery to her by her son, raises an inference of her having accepted the deed that can hardly be said to be weakened, and that certainly is not overcome by the fact that she did not give publicity to a family matter by spreading the deed on the public records. The declarations of the grantee that Theodore’s share belonged to [288]*288his children,’ while evidential of the purpose for which the deed was made to and held by her, have no bearing upon the question as to where,' upon an uncontroverted state of facts, the legal title resided. The inference of acceptance arising from lapse of time and the other circumstances adverted to is so strong and so entirely unrebutted that the only conceivable hypothesis at all consistent- with the retention of the title by Theodore during the fourteen years that followed his delivery of the deed is that during all of such period such instrument remained in a sort of escrow so that the legal title did not pass under it until the happening of some event or the performance of-some condition. Such hypothesis, however aptly it may account for the conduct of the parties, runs directly counter to the imperative rule that a deed cannot be in escrow with its grantee. The soundness of Chief-Justice Beasley’s exposition of this subject in Ordinary v. Thatcher, 41 N. J. Law (12 Vr.) 403, has never been questioned in this state. The rule everywhere is that the delivery of a deed to its grantee cannot be in escrow, but is, regardless of such purpose, a good delivery of the deed. 11 Eng. & Am. Encycl. L. 333, “Escrow;” 16 Oyc. 561, “Escrows.”
The stability of all titles to land rests at bottom upon this rule.
The conclusion, therefore, seems to us to be irresistible that from 1889 to 1903 the legal title to Theodore’s interest in the farm was in the grantee of his deed, viz., Josephine T. Weaver, the appellant. This conclusion must also have been assumed by the learned vice-chancellor before he could consistently regard Mrs. Weaver in-the light of a donor of such interest. Por when he says that Mrs. Weaver “was making a gift to her children,” and was “in the position of a donor whose gift was completely executed,” he was in effect assuming her acceptance of the deed without which she would have had nothing to donate and could not have held the position of a donor. Excepting as such acceptance is thus implied we cannot adopt the reasoning by which the conclusion is reached that an executed gift resulted from the destruction by Mrs. Weaver of the deed, chiefly from the consideration that there is no express finding of fact that Mrs. Weaver did destroy the deed or any testimony that would sup[289]*289port such a finding. The other ground of the decision below, viz., that of the voluntary execution of an unenforceable trust seems to involve the same implication as to the acceptance of the deed. Eor a trust, whether enforceable or unenforceable, must exist in order to be a trust, and, in order to exist, must be supported by the legal estate which in the present case could have become vested in Mrs. Weaver in no other way than by her acceptance of Theodore’s deed. Further than this we cannot go with the court below, not only because it was not proved that Mrs. Weaver destroyed the deed with the object of executing a trust, but also because, in our opinion, the acts that she did were entirely ineffectual for such object. The underlying legal estate essential to the conception of a trust is neither annulled or transferred by the loss of the deed that conveyed it or by withholding such deed from record or by both combined; the title to land, if once vested in a grantee, cannot, in legal contemplation, be revested by the grantee in the grantor or his heirs or transferred to- strangers save by an appropriate documentary act.
Fifty years ago Chancellor Green, in the case of Wilson v. Hill, 13 N. J. Eq. (2 Beas.) 143, declared that “the rule of the common law is perfectly well settled that the cancellation of a deed by consent of parties will not devest the grantee or revest in the grantor an estate which has once vested.”
How far a court of equity may go in giving effect to the cancellation, destruction or surrender of an unrecorded deed cannot properly or profitably be discussed upon this appeal, where, in the absence of proof of any of these essential acts, nothing but dicta could result.
The question was suggested seventy years ago by Chancellor Pennington’s statement in Faulks v. Burns, 2 N. J. Eq. (1 Gr. Ch.) 250, that “the parties to a deed in a case not affecting third persons may, b3r agreement, cancel it if it be not recorded,” and the entire subject, which is one of great interest, is treated in a comprehensive note to the case of Matheson v. Matheson (already cited), as reported in 18 Lawy. Rep. An. (N. S.) 1167.
The learned vice-chancellor, in support of the conclusion reached by him, cites 15 Am. & Eng. Encycl. L. 1169, note 5. [290]*290The title in the Encyclopedia is “Implied Trusts,” and the text annotated is as follows:
“Though under the statute no trust results in favor of the person by whom the purchase-money was paid still, if the grantee voluntarily executes the trust, such execution is binding upon him, and cannot be recalled.”
This text predicates the due execution of a resulting trust, and the cases cited in note 5 in support of it are all cases either of resulting trusts involving actual fraud or of attempts to invoke equitable powers in aid of a fraud, hence neither the text nor the cases throw any light upon what will constitute the due execution of an express trust which is the question sub judice.
Assuming, therefore, but not deciding, that the voluntary destruction by Mrs. Weaver of the unrecorded deed with the intent thereby to execute the parol trust, might afford a foundation for the decree rendered in the court below, it is none the less true that the fact of such destruction must be put in issue and established like any other essential fact. This was not done inasmuch as there was no such allegation in the bill, no adequate proof produced at the trial, no such issue raised or tried out in the court below, and, finally, no such contention made in this court.
Our conclusion on the whole case is that Josephine T. Weaver in 1903 was lawfully seized of her son’s estate and interest in the Weaver farm, and that since that time she has not, by any method known to the law, devested herself of such estate. This leads to a reversal of the decree of the court below upon strictly legal grounds, the case being barren of any equities unless the appellant Josephine T. Weaver by her admissions, in the course of litigation or otherwise, has estopped herself from asserting her legal title.
The vice-chancellor failed to discover such an estoppel, and in this we think he was quite right, for the admissions and declarations of the appellant, while evidential against her, lacked the essential element of an estoppel, viz., they did not induce any action or inaction or change of status in the respondents.
[291]*291The result reached is that the decree of the court of chancery should be reversed to the end that the complainants’ bill be dismissed, and the appellant Josephine T. Weaver suffered to proceed with the remedy provided by statute in the case of a lost deed.
For affirmance—None.
For reversal—The Chief-Justice, Garrison, Swayze, Eeed, Parker, Bergen, "Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Gray, Congdon—13.