Bromley v. Mitchell

, Holmes, J.

This is a bill to recover possession of certain mortgage notes and mortgage deeds held and secreted by the defendants, so that they cannot be come at to be replevied. The defence is rested mainly on the invalidity of the deed under which the plaintiff claims title. The judge who tried the case found *511 the deed to be valid, and the question is whether there is any ground on which we can say, as matter of law, that he was wrong.

The deed is an absolute conveyance of all the grantor’s property, which was all personalty, in trust, to apply the income of or proceeds of the sale of the same in accordance with the instructions previously given to the plaintiff by the grantor. These instructions and trusts, as found by the judge, certainly have a very testamentary look, and as the deed was executed only two days before the grantor died, we appreciate the strength of the argument that the parties must have understood that the testament was to take effect only in case the grantor died, and that it is not a deed, but an ineffectual will.

But on the face of the deed it is a conveyance operating at once and irrevocably, and there is nothing in the paroi trusts which is not reconcilable with the same interpretation. It is perfectly possible to convey all one’s property upon a present irrevocable trust to pay one’s debts and so forth, as found in this case. If the trusts include gifts which do not pass to the possession of the cestuis que trust until the death of the donor, that is not conclusive against the instrument being a deed, and valid as such. Krell v. Codman, 154 Mass. 454 . West v. West, ante, 317. This case is not like that of an instrument purporting to convey only such property as the grantor may own at his death, and leaving him with all the rights of ownership and free to dispose of what he sees fit meantime. Gage v. Gage, 12 N. H. 371. In re Diez, 50 N. Y. 88 . In re Knight, 2 Hagg. Eccl. 554. Mor is it the case of an instrument purporting to be a will, notwithstanding some ambiguous expressions. See Habergham v. Vincent, 2 Ves. Jr. 204, 230, 231; Hickson v. Witham, Finch, 195; S. C. 1 Ch. Cas. 248. Mor is it like any other where rightly or wrongly the document is construed as revocable on its face. Turner v. Scott, 51 Penn. St. 126. Frederick's appeal, 52 Penn. St. 338. Frew v. Clarke, 80 Penn. St. 170, 178. Symmes v. Arnold, 10 Ga. 506 . Sartor v. Sartor, 39 Miss. 760, 771, 772 . Warriner v. Rogers, L. R. 16 Eq. 340, 353. Compare West v. West, ante, 317.

If, then, we are to decide in favor of the defendants, we must look outside of the deed. If we do that, it seems a strong thing *512 to say that an instrument purporting to operate at once upon execution may be shown to have been intended or understood by the parties to take effect only on the grantor’s death, by evidence which does not go to the height of negativing an effectual delivery. See Green v. Froud, 3 Keb. 310; S. C. 1 Mod. 117; Wareham v. Sellers, 9 Gill & J. 98; Lautenshlager v. Lautenshlager, 80 Mich. 285 ; Sharp v. Hall, 86 Ala. 110 . Compare Fairbanks v. Metcalf, 8 Mass. 230 , 238; Ward v. Lewis, 4 Pick. 518 , 520; Stevens v. Stevens, 150 Mass. 557 ; Glynn v. Oglander, 2 Hagg. Eccl. 428, 431, 432. That proposition is very different from saying that, when a deed fails as a deed for some independent reason, it may have effect as a will, a principle formerly applied in England, but now of little practical importance in this State since the requirement of three witnesses for all wills. Masterman v. Maberly, 2 Hagg. Eccl. 235, 247. In re Morgan, L. R. 1 P. & D. 214. Milledge v. Lamar, 4 Desaus. 617 , 622.

But whether or not the defendants could make out a case outside of the deed except by disproving the delivery, the understanding of the parties as well as the delivery is a question of fact, and whatever is material to the plaintiff’s case has been found in his favor. The evidence is not before us, and there is nothing which enables us to say that the finding was wrong. We must take it that the parties understood and intended an immediate conveyance, if that is material, and that the instrument was delivered. As it purports to be such a conveyance, and as the trusts are consistent with its being so, the plaintiff’s case is made out. There are not the same objections to a reference outside the document for the trusts as were held in Olliffe v. Wells, 130 Mass. 221 , to exist in the case of a will, if it is not enough to say that the deed gives the plaintiff the legal ownership of the papers.

There is no question here of any intention to defeat rights of third persons, which would have been paramount had the grantor attempted to make the same disposition by will, if such intent could be material when an otherwise valid conveyance is made. Krell v. Codman, 154 Mass. 454, 458 . White v. Bigelow, 154 Mass. 593, 596 . Stone v. Hackett, 12 Gray, 227 , 233.

There was no necessity for the plaintiff to describe himself a trustee. Odd Fellows Hall Association v. McAllister, 153 Mass. *513 292, 297 . It would not have been proper to make the grantor’s executor or administrator a party. The issue is simply whether the plaintiff can replevy certain chattels of the defendants, not what will become of them if the plaintiff fails. No one but the present parties is entitled to be heard on the question which of the two, as between themselves, shall have possession of the chattels. Decree for the plaintiff.