Stilwell v. Hubbard

20 Wend. 44

• Court: New York Supreme Court
• Decided: July 15, 1838
• Status: Published

Opinion

jBy the Court, Bronson, J.

The deed was never delivered to nor accepted by Altie, the grantee, but remained in the possession of the grantor until the time of his death. Jackson v. Phipps, 12 Johns.R. 418. There weré no formal words of delivery, and nothing was said at the time the deed was executed from which it can be inferred that Hubbard intended it should be a present operative conveyance. On the contrary, it plainly appears that he intended the deed should not take effect till after his death. In Doe v. Knight, 5 Barn. § Cress. 671, the grantor at the time of execution said to the subscribing witness, “ I deliver this as my act and deed.” He afterwards handed the deed to bis sister, saying, “ Here, Bess, keep this, it belongs to Mr. Gamons,” who was the grantee. The jury found that the grantor parted with the possession and all power and control over the deed, and that the sister held it for Mr. Gamons, free from the control and disposition of the brother. The court held this a good delivery to a third person for the use of the grantee. On another point in the case, Bayley, J., after referring to several authorities, said “It seems to me that where an instrument is formally sealed and delivered, and there is nothing to qualify the delivery but the keeping the deed in the hands of the executing party, nothing to show he did not intend it to operate immediately, that it is a valid and effectual deed, and that delivery to the party who is to take by it, or to any person for his use, is not essential. This is perhaps going as far as any of the cases, but it will not answer the purpose of the plaintiffs. In Scrugham v. Wood, 15 Wendell, 545, the conveyance was to trustees, of whom the plaintiff, who now claimed against the deed was one, and the trustees covenanted to execute the trusts. The deed was executed and acknowledged by and in the presence of all the parties. The grantor had the deed recorded, and then deposited among his papers. There was no room to doubt that all the parties intended it should immediately take effect as an operative conveyance. The grantor, as well as the other parties, was interested in the preservation of the deed ; and it was said, that the fact of its being in his possession did not, under the circumstances of the case, create any presumption against the idea that a delivery was intended at the time of execution. In Ruggles v. Lawson, 13 Johns. R. 285, the grantor delivered several deeds to a third person, to be delivered to his children respectively in case he should die before making a will. The grantor having died without making a will, it was held that the deeds were good, and would take effect from the first delivery. But in the case at bar, there was no delivery to a third person. The grantor kept the deed himself. He did not intend it should be an operative conveyance so long as he lived ; and if it was his settled purpose that Altie should have the land after his death, he has not taken the proper legal means for carrying that intention into effect. We cannot uphold this deed without overturning well settled principles. There must be a new trial; and as the verdict was against law and the charge of the judge, the costs must abide the event.

New trial granted.