Darling v. Williams

The following opinion was filed February 9, 1926:

Vinje, C. J.

The case presents a question of fact rather than one of law. .It is well settled that to constitute a valid delivery of a deed the grantor must not only intend a delivery but must part with dominion and control of the deed and the grantee must accept the delivery made. Prutsman v. Baker, 30 Wis. 644 ; Butts v. Rickards, 152 Wis. 318 , 140 N. W. 1 ; Zimmerman v. Zimmerman, 165 Wis. 146 , 161 N. W. 369 ; Padden v. Padden, 171 Wis. 212 , 177 N. W. 22 . Here we have perhaps an intent on the part of the grantor, Mrs. Chase, that there shall be a delivery, but such delivery is defeated in two ways: the grantor did not part with the control of the deed and the grantee refused to accept delivery. It seems to us that the only reasonable conclusion to be drawn from the whole evidence is that the deed was left with the bank subject to the control of the grantor during her lifetime and was then to be delivered to the grantee and recorded. It is quite immaterial how such result was reached or what was said by the different parties before they finally agreed upon the plan actually adopted. The directions for such a plan may well have come *491 in part from Mrs. Lorrig. That does not change its nature or effect. The whole conversation, the receipt given, and what was done by the bank, spell only one purpose, namely, to leave the deed with the bank so that Mrs. Chase could control it during her lifetime, and upon her death have it delivered to the grantee. The result is that, there having been no valid delivery of the deed in the lifetime of Mrs. Chase, she died seized of 'the property and it passed under her will.

By the Court. — Judgment reversed, and cause remanded with directions to enter judgment confirming the title in plaintiff.

A motion for a rehearing was denied, with $25 costs, on April 6, 1926.