SILVENUS A. TAFT V. SMITH T. TAFT.

Deed of land, delivery of--Retained in possession of grantor to be delivered
upon performance of condition, after his death, validity of-Deliv-
ery on like condition, to a third party, effect of—Escrow,
doctrine of examined-Deposit of deed with third
party, to be delivered unconditionally on
death of grantor, sustained.

1. To render a deed valid, as a conveyance of land, it must be made
operative by delivery by the grantor, while he is able to act, and if
found in his custody at death the proof, or facts amounting to proof,
must show an effectual delivery by him in his life-time, by which he
thereafter became a mere custodian of the instrument, and when
the facts appear there is no room for presumption.

2. A deed of conveyance in present terms is inconsistent with the retention of a life estate and from the time of its delivery as a conveyance, the whole title goes with it, and the deed becomes irrevocable. Such delivery to a third person, intended to make the conveyance operative, is a legal delivery even where the grantee is ignorant of the transfer.

8. A father, about one year before his death, executed and acknowledged a deed to his son, and caused to be drawn up a note for $100 payable to his daughter, which was folded in the deed, and both papers locked up by the father in his bureau drawer, the key to which he kept in his pocket-book, on his person. He directed the daughter to open the drawer, at his death, and on the execution of the note by her brother, to deliver to him the deed, which was done, the key being found in the father's pocket-book, on his person. The father asserted his intention to retain the control of all of his property during his life-time, and said that unless the note was signed by the son, he should take nothing under the deed.

Held, in a suit involving the validity of this deed, that there was nothing to justify the submission to the jury of the question of its delivery. The note was to be executed as a condition precedent to the transfer of the title, and the delivery of the deed was meant to be, and in fact was, posthumous, and therefore void.

4. A father, advanced in years, being desirous of providing for two sons and a daughter, joined with his wife in deeds to the sons, severally, of the principal part of the farm on which the grantors resided, and deposited the deeds with a third party, together with a note for $1,000 payable to the daughter, with verbal instructions to the depositary to keep the papers until the father's death, when on the brothers signing the note, the deeds were to be delivered. At this time the father was sick and gave the custodian of the papers to understand that he did not expect to recover. After his death, the sons signed the note, and the deeds were delivered to them, respec

tively. The father always asserted his intention to retain control of all of his property until his death, and that unless the notes were signed the grantees should take nothing under the deeds.

Held, that the conveyances must be held invalid. That if the deeds had been delivered irrevocably, on the simple condition of transfer to the sons on the death of the father, the transaction might be sustained upon the authority of Wallace v. Harris, 32 Mich. 380, and Latham v. Udell, 38 Mich. 238, but that this does not rest on the doctrine of escrow.

5. While a deed left in escrow is frequently held to relate back for the purpose of avoiding the difficulty of incapacity of the grantor, or his death occurring before the deed is handed over by the depositary, yet, except for that formal purpose, there is no universal relation, and so far as the authorities go, ancient or modern, they all assume that the relation back is founded on the unintended or unexpected occurrence of some disability without which the second delivery would have been the act, at its date, of the grantor, prevented without his original design.

6. Intermediate rights are valid against such second delivery, which is essential to carry title.

Error to Macomb. (Stevens, J.) Argued November 12, 1885. Decided January 20, 1886.

Ejectment. Plaintiff brings error. Reversed. The facts are stated in the opinion.

Crocker & Hutchins, for appellant:

The delivery without reserve of a deed by a grantor to a depositary to deliver the same unconditionally to the grantee therein named, upon the grantor's death, would be a good and sufficient delivery, provided the grantor intended thereby to give a present effect to the instrument. Any act or words indicating an intention on the part of the grantor to give a present effect to his deeds would constitute a good delivery thereof. In all cases of this class the fundamental inquiry is whatever may have been the physical disposition of the instrument, whether the grantor intended the deeds to operate presently as his deeds and without condition or reserve: Thatcher v. St. Andrew's Church, 37 Mich. 264; McCullough v. Day, 45 Mich. 554.

But the delivery of a deed by a grantor to a depositary, with instructions to deliver it to the grantee named therein upon the grantor's death, the grantor during his life-time having dominion over the instrument and intending that it

shall not be an operative conveyance so long as he lives, is not a legal delivery, and will not pass title to the grantee upon being handed over to him by the depositary after the death of the grantor. Nor does the mere lodgment of a deed properly executed and acknowledged, by the grantor in a designated place, but so that it is under his control during life, with the intent on his part that the grantee may after his death take it and then become owner of the land therein described, constitute an effective delivery; the taking and recording of such a deed by the grantee, after the death of the grantor, would be ineffectual to perfect it. The control of the deed by the grantor during life, and his intention that it shall not become an effective conveyance so long as he shall live, invalidates the delivery in each instance. To constitute a valid delivery the grantor must part with the control of the instrument with the intent of giving it a present effect as a conveyance: Stilwell v. Hubbard, 20 Wend. 44; Brown v. Brown, 66 Me. 316; Huey v. Huey, 65 Mo. 689; Ball v. Foreman, 37 Ohio St. 132, 139; Cook v. Brown, 34 N. H. 460; Prutsman v. Baker, 30 Wis. 644; Younge v. Guilbeau, 3 Wall. 636; Byars v. Spencer, 101 Ill. 429.

If conditions are precedent, inasmuch as the estate does not vest at all until such conditions are fulfilled, the effect of their being set for performance after the death of the grantor is that the estate dependent upon them fails and the grant becomes wholly void. The condition is in effect one impossible of performance: Washburn on Real Property, 448.

Geo. M. Crocker and A. L. Canfield, for defendant:

Delivery of a deed by the grantor to a third person to be delivered to the grantee after his death is a good delivery: Wallace v. Harris, 32 Mich. 380; Thatcher v. St. Andrew's Church, 37 Mich. 264; Latham v. Udell, 38 Mich. 238.

The deposit of the note with the deed, with instructions to deliver it upon the note being signed did not invalidate the deed. The deed when deposited was an escrow to be delivered upon the performance of a condition: Graham v. Graham, 1 Ves. Jr. 275; Ruggles v. Lawson, 13 John. 285; Bostwick v. McEvoy, 62 Cal. 496; Frost v. Beekman, 1 John. Ch. 288, 296–7; Jackson v. Rowland, 6 Wend. 666; State Bank v. Evans, 3 Green (N. J.) 155, and cases cited; 2 Hilliard on R. P. 305.

A deed may be effectual to pass the title, although possession of it is retained by the grantor. There is the same necessity for the delivery of a gift of personal property, in

contemplation of death, as of a deed of real estate: Ellis v. Secor, 31 Mich. 185; Bostwick v. Mahaffy, 48 Mich. 342; and the act of delivery has no virtue per se, being only evidence of intent to pass title.

Voluntary deeds from parent to child are valid to pass title although retained in the possession and control of the grantor until his death: Boughton v. Boughton, 1 Atkyns, 625; Clavering v. Clavering, 2 Vern. 475; Masterson v. Cheek, 23 Ill. 73; Reed v. Douthit, 62 Ill. 348; Newton v. Bealer, 41 Ia. 334; Ellis v. Secor, 31 Mich. 189.

CAMPBELL, C. J. Plaintiff, as one of the children and heirs-at-law of Aden Taft, deceased, brought ejectment for an undivided share of two parcels of land owned by his deceased father, which defendant, another son, claims as grantee. One parcel he claims under a deed made by Aden Taft, but held in his own control until death. The other he claims under a deed from said Aden Taft, alleged to have been deposited in escrow with Charles F. Mallory, who delivered it to defendant after his father's death.

Upon the trial the whole controversy turned upon the validity of these two deeds. The court, as to the alleged escrow, told the jury that delivery to a third person, to be delivered to the grantee after grantor's death, is a sufficient delivery, and that if Aden Taft left the deed with Mr. Mallory, with instructions to deliver it to defendant, and he intended there by to make the deed effectual, and it was so delivered, it was valid. He further charged that the right to recall the deed would make no difference, if it was not exercised, and that the fact that the deed was not to be delivered until defendant executed a note for his share of $1,000 would not affect it, if actually made; and further, that a delay of several months in closing it would make no difference, and would not invalidate the deed.

As to the other deed the court held that a deposit of it, with a note to be executed by defendant, after grantor's death, to his sister, in a locked bureau drawer, to which he kept the key in his pocket-book, in his pocket, and which so remained till after his death, informing grantee of it, and directing that, after his death, the deed should be

taken on signing the note, all of which was assented to by defendant, and done, would pass the title, if it was so understood and intended by grantor.

There was no considerable dispute about the facts, which were substantially as follows, leaving out of sight some questions relating to what is claimed to have been an unauthorized admission of testimony, to which, for the present, no reference will be made :

Aden Taft was a farmer, advanced in years, and living on the premises in dispute. Plaintiff was an elder son, who had not lived at home since his youth, and who had been helped in his education. Defendant and another brother, Emery Taft, had been in the neighborhood, and, during his later years, had been of service to grantor in various ways. He appears to have desired to provide for them specially, as well as to make some provision for a married daughter. While his wife was living, in November, 1876, they joined in deeds conveying the principal parts of the land, being east of a highway which traversed the farm, severally to defendant and Emery. Aden Taft also made a will. These deeds and the will he deposited with Charles F. Mallory, together with a note in blank, to be signed by Smith and Emery, providing for the payment, in specified proportions, by each of them, to their sister Mrs. Summers, of $1,000 in five installments, running with interest, to begin after his death. Each of the deeds was upon an expressed consideration of $3,000. All of these papers he gave to Mr. Mallory, with instructions verbally to keep until his death, and thereafter, on the signing of the notes, to deliver the deeds. After the death of Mrs. Taft, the grantor went to Mallory, and said he wanted the will, which he took away with him, and the contents of which do not appear. Mallory asked if he wanted the deeds. He said, "No;" but told him not to give them up to any other person. When the deeds were drawn up by Mr. Mallory, grantor was sick, and did not expect to get well, as he gave Mallory to understand. He died in May, 1879. In January, 1880, defendant and Emery signed the notes, and Mal