Renehan v. McAvoy

Briscoe, J., delivered the opinion of the Court. The controversy in this case arises over the validity of a certain paper writing, purporting to be a deed, dated the 10th day of March, 1902, and executed by Hugh McAvoy, late of Howard county, Maryland, in his lifetime and delivered to the Clerk of the Circuit Court for Howard County for record, after his death, by the Register of Wills of that county, in whose custody it had been left by the grantor, to be kept until his death, and then to be placed upon record. The deed as set out in the record is as follows: “This deed made this tenth day of March, 1902, by me, Hugh McAvoy, of Howard county, Maryland, witnesseth, that in consideration of five dollars and other good considerations me thereunto moving, I, the said Hugh McAvoy, do grant unto Joseph McAvoy and Elizabeth McAvoy, during their respective lives and no longer, subject, however, to my life estate therein, all that farm situate, lying and being in Howard county, and described as follows; that is to say: the farm upon which I now reside, situated in the Third Election District of Howard county, which my father, the late Erancis McAvoy, devised to me, and all the additions which I have made thereto by purchase or otherwise, and I charge said farm with ten dollars for masses to be said for the repose of my soul and those of my family;' and after my death and the deaths of both my brother, Joseph McAvoy, and my sister, Elizabeth McAvoy, and the charge aforesaid shall have been paid, I give and grant my said farm and all the additions thereto as aforesaid to my nephew, Allie McAvoy Renehan, for and during his natural life, and after his death to the brothers and sisters of the said Allie Mcxlvoy Renehan equally, share and share alike; but if any or all of said Allie McAvoy Renehan’s brothers and sisters shall have departed this life during the lifetime of said Allie McAvoy Renehan, then I give and grant my said farm aforesaid to the ³⁵⁸ descendants or descendant then living of said departed brother or sister per stirpes and not per capita; but should the said Allie McAvoy Eenehan have children or the descendant or descendants of any deceased child or children living at his, said Allie’s, death, then I give to said child or children or the descendants of any deceased child or children living at his death the farm aforesaid per stirpes and not per capita. And I give, bargain and sell all of my personal property owned by me at the time of my death to the parties aforesaid upon the same terms and conditions as I have hereby given my real estate.

And I do further charge my real estate given as aforesaid with the further sum of four hundred dollars to be paid by Allie McA. Eenehan to my niece, Annie Eenehan, wife of my nephew, William Eenehan, at the death of the last of said life tenants, Joseph and Elizabeth McAvoy. Witness my hand and seal. Witness: Hugh McAvoy.

(Seal) JOHÍT G. Bogebs." The deed, it will appear, was executed and duly acknowledged by the grantor on the 10th day of March, 1902, before Howard D. Dunkel, a justice of the peace of the State in and for Howard county, and was recorded among the Land Becords of that county on the 2nd day of January, 1904, after the death of Mr. McAvoy. It is admitted that at the date of the execution of the deed, the grantor was capable of making a valid deed or contract; that he held absolute title to the property; that no rights of creditors or other persons having liens are involved, and the deed was properly executed under the laws of Maryland to pass real estate. But it is earnestly insisted upon the part of the appellants, certain of his heirs at law, that the deed is void because it was never delivered, so as to perfect the instrument as a valid deed, and the grantees took no title to the property mentioned therein. The Circuit Court of Howard County upon hearing of the case, upon bill, answer and proof, held the deed to be a valid ³⁵⁹ instrument to convey real estate, and dismissed the plaintiffs’ bill for a decree to vacate and annul the deed and for a sale of the property for the purposes of partition among the heirs at law of the grantor.

And it is from this order thus passed that this appeal has been taken. It is clear, upon all the authorities, that delivery and acceptance is essential to the validity of every deed, and what constitutes a sufficient delivery to transfer and vest the title in the grantee or to make it operative and effectual as a deed depends largely upon the facts and circumstances of each particular case. The general and essential requisites to the validity of a deed under the facts and circumstances as indicated in this case have been settled by numerous and well-considered authorities. In Duer v. James, 42 Md. 496 , affirmed by this Court in Hearn v. Purnell, 110 Md. 465 , it is said, “to constitute a delivery of a deed the grantor must do some act putting it beyond his power to revoke.

There can be no delivery so long as the deed is within his control and subject to his authority. In the language of the Supreme Court in Younge v. Guilbeau, 3 Wall. 634 , the grantor must part with the possession of the deed or the right to retain it.” In Clark v. Creswell, 112 Md. 342 , it was held, there is a consummated delivery when the instrument has passed from the grantor, without right of recall, to the grantee or to some third person for his use. The test of delivery is the relinquishment by the grantor of the custody or the control of the deed. When he has formally executed and acknowledged it and delivered it unconditionally to the grantee or one acting for him, the conveyance is completed and the title has passed.

It is also settled by the great weight of authority in this State and in other jurisdictions, that the grantor must part with all dominion and control over the deed at the time of its delivery to a third person, in order to make such act a sufficient delivery, in order to divest the title, and the delivery to the third person must be for the use and benefit of the grantee. Carey v. Dennis, 13 Md. 18 ; Owens v. Miller, 29 ³⁶⁰ Md. 144; Leppoc v. Union Bank, 32 Md. 136 ; Younge v. Guilbeau, 3 Wall. 262 ; Porter v. Woodhouse, 59 Conn. 568 ; note to Munro v. Bowles (Ill.), 54 L. R. A. 865. In the case before us the deed, after its execution by the grantor, was placed in the hands of Judge John Gr. Rogers of the Howard county bar, with certain directions, as testified to by him.

The testimony of Judge Rogers, as contained in the record is as follows: “Mr. Hugh McAvoy came into my office on March 10, 1902, and said that he wanted a paper prepared. 1 asked him what kind of a- paper he wanted prepared,'and he said that he wanted to make his property over to Allie. I asked him what provisions he wanted in the paper, and at his direction I prepared that paper, the deed. He signed it and I witnessed it. Then I told him to take it down to Mr. Howard Dunkle’s and acknowledge it.

He returned with' the paper and gave it to me. I then asked him what he wanted done with it, and he said that he wanted me to keep it for him; at his death, to have it put upon record. I asked him why he did not have it put on record now, but he said that he had reasons for not doing so. I did not inquire into those reasons.

He handed me the paper and I asked him: 'You have delivered this paper to me to be put on record in case of your death?’ and he said, 'Yes.’ Then he went away. I took the paper and- put it in a pigeonhole, and there it remained something over a year. Afterwards he came into my office and said that he wanted the paper. I asked him what he wanted with it, as he had put it into my hands to be put upon record in case of. his death.

He said that he did not want to change it, but that it had occurred to him that something might happen to me, and then no one would know where the paper was. He said that he thought he.had better take it and deliver it to the Register of Wills for safekeeping. I said that this did not make any difference to me. Then he took it away with him.” It is apparent, we think, according -to all the authorities, that the placing of the deed with Judge Rogers, under the facts of the case, was not an effective and valid delivery. ³⁶¹ It w,as delivered to Judge Bogushs, as stated by the grantor “to he kept for him, at his death to be put upon record.” It was subsequently recalled, surrendered to the grantor, and delivered by the grantor to the Begister of Wills for Howard County.

The evidence shows beyond all question, that from what the grantor did and said, he simply intended to constitute Judge Bogehs as his agent for the custody of the paper, and he cannot therefore be treated in any sense as an agent or depository for the use and benefit of the grantees. It is established by the overwhelming weight of authority, that it is absolutely indispensable in order to constitute a sufficient delivery that the grantor, shall part with control over the deed and shall not retain a right to reclaim it. Clark v. Creswell, supra; Brown v. Brown, 66 Me. 316 ; Woodward v. Camp, 22 Conn. 457 ; Bale v. Foreman, 37 Oh. St. 132; Hawes v. Hawes, 117 Ill. 409 ; Hammerslough v. Cheatham, 84 Mo. 13 ; Prustman v. Baker, 35 Wis. 644 ; Bailey v. Bailey, 52 N. C. 44 ; Trask v. Trask, 90 Iowa, 318 ; Wilson v. Wilson, 158 Ill. 567 .

The next inquiry then, is, was the leaving of the deed by the grantor in the custody of Mr. Marlow, the Begister of AVills, on the 5th of May, 1903, “for safe-keeping, and at his death to put it or have it put on record,” a valid delivery of the deed. Mr. Marlow, who was called as a witness, on behalf of the plaintiff, testified that he was Begister of AVills of Howard County in the year 1903, that he knew Mr. MoAvoy, and he gave into his keeping a paper writing, which he said was a deed or will under the following circumstances: “Q. Hid he tell von why he gave it to you, and if so what reason did he give? A. He told me ihat he wished to leave it with me for safe-keeping, and at his death to put it, or have it put, on record. 9 Q. Did you issue any receipt to him? A. I did. 10 Q. Then you accepted the paper for safe-keeping ?

A. I did. ³⁶² 11 Q. As whose agent? A. Hugh McAvoy’s. 12 Q. And you put the deed in the safe ? A. I did. 13 Q. Was the deed sealed up ? A- I do not remember whether the deed was sealed up or whether I put it in the envelope and sealed it. 14 Q. Then you don’t recall whether you knew the name of the grantee or not ?

A. I do not. 15 Q. I now show you a paper produced out of the custody of the Register of Wills in response to a summons duces tecum. Please state whether or not you can identify it ? A. I can. 16 Q. In whose handwriting is that paper? A. Mine. 17 Q. What is that paper?

A. It is a receipt which I gave Hugh McAvoy at the time he gave me the deed. It is dated at Ellicott Oity,