Hawkes v. Pike

A register of deeds wrote a deed, which the grantor signed and sealed and left with him to be recorded. The register had no authority from the grantee, who was absent, to receive or keep the deed for him; and did not undertake to act for him; and gave the deed back to the grantor, after recording it. Held, that there was no delivery of the deed to the grantee.

Bill rsr equity by Gilbert Hawkes and Daniel Fairchild to redeem a lot of land in Lynn from a mortgage. The bill alleged the making of the mortgage by Daniel Fairchild, while he was owner of the premises ; his subsequent conveyance of the equity of redemption to Hawkes to hold in trust for him; and the desire and willingness of himself and Hawkes to pay what was' due on the mortgage. The defendant filed a plea denying the right of the plaintiffs to redeem, and alleging that Daniel Fairchild executed and delivered a deed of the premises to Silas Fairchild before his deed to Hawkes. The plaintiff filed a replication, traversing the delivery of the deed to Silas Fairchild ; and the case was heard before Ames, J., on that issue, and reported for the revision of the full court. The following is the substance of the report: The deed from Daniel Fairchild to Silas Fairchild, and also the deed from Daniel Fairchild to Hawkes, were put in evidence the former was dated and acknowledged April 11, 1860 ■ the latter was dated and acknowledged April 12, 1860. Ephraim Brown, register of deeds for the county of Eases, testified for the defendant, “ I wrote the deed from Daniel Fairchild to Silas Fairchild, and certified the grantor’s acknowledgment. He left it with me for registration.” And on cross-examination he testified: “ I made the deed at his request; he signed, acknowledged, and left it with me. The next day he called with Abner 0. Goodell, wanted the deed, and said he did. not want it to be recorded. At that time I had partially recorded it, and so refused to give it back. Silas, the grantee, was then in California. I had no authority from Silas. The next day I gave the deed back to Goodell. I do not think Daniel Fairchild was then present. I understood Goodell to act for Daniel Fairchild.” The defendant here rested his case. Daniel Fairchild, called by the plaintiffs, testified thus: 161 am seventy-five years of age. I had a deed made out to Silas, by Register Brown. I went to get, but did not get it. Brown said he had begun putting it on record, and must finish it. I was accustomed to the practice in Vermont of putting deeds on file, not to be considered as recorded, but subject to recall, and supposed that I could do so here. My motive for making this deed was that there had been a threat of putting me under guardianship. For some reason, I had had a calculation of having Silas live with me to take care of me. I wanted to recall the deed, because Silas might become unfortunate and so the place be taken away from him. I think I was not present when Goodell took back the deed. It was never given to Silas, in hand, that is. After considering, I did not calculate to have the deed go.” On cross-examination, he testified: “I had written to Silas to come home; had been expecting him for years ; and expected him that spring. He had sent me money from time to time. I did not make that deed because I owed him; I was calculating he would take care of me. It was on account of the guardianship; I supposed he would deed back to me, if no guardian should be appointed. I meant to have it so that it could be put in the market and sold I thought I could trust him, and that he would come and live with me. I meant that all the heirs should have what belonged to them, except enough to pay him for taking care of me. I calculated to have the deed recorded, and had an idea of sending it out to Silas. I changed my mind because I was afraid he would be unfortunate and lose his property. It was my second thought that induced me to take the deed back; my first thought was, that he would deed back when I wanted it. I went of my own accord to get the deed back.” Abner C. Groodell testified to the execution of the deed to Hawkes, and also thus : “ I went with Hawkes and Daniel Fair-child to the registry of deeds; I was called on by Fairchild to dc so. I told the register that at Fairchild’s request I demanded that deed. He said that it was partially spread on the record ; the record had begun when Fairchild called; he would give it to me when the record was finished. I was authorized by Fairchild, in the register’s presence, to take the controverted deed. I think it was given me the same day the deed to Hawkes was made.” The defendant in reply called Silas Fairchild, who testified: “ Father wrote to me that he would make me a deed. I expected that he would ; and if I had been at home I should have taken it from the register. I always claimed that the deed was mine.” Some letters from Daniel Fairchild to Silas Fairchild were also put in evidence. Upon the evidence, the judge found for the defendant, and ordered that the bill be dismissed; and the plaintiffs appealed.