Opinion
No. 34551.
April 28, 1941.
1. DEEDS. Homestead.
Where grantor, while living with her husband on conveyed land as a homestead, signed and acknowledged a deed wherein defendant was named as grantee, and grantor deposited deed with a bank under conditions shown by memorandum reciting that deed should be delivered only to grantor unless she died before calling for it and then to defendant, and after husband's death grantor, before being taken to hospital preceding grantor's death, delivered memorandum to defendant with instructions that defendant should take memorandum and get his deed, delivery of memorandum was a "delivery" of deed, and deed was not void on ground that it was not signed by husband, since deed was not fully executed as such until delivery.
2. DEEDS.
Written instructions to a bank, with which a deed was deposited by grantor, reciting that deed was to be delivered to no one except grantor unless grantor died before calling for it and then to grantee made bank the "agent" of grantor, rather than of grantee, in determining whether deed was delivered.
3. DEEDS.
That a grantee, named in a deed which grantor deposited with a bank under instructions evidenced by a memorandum reciting that deed was to be delivered to no one except grantor unless grantor died before calling for it and then to grantee, did not demand deed from bank until after grantor's death was immaterial in determining grantee's rights under deed, since grantee's right to deed and to its delivery fixed grantee's status, rather than time at which grantee chose to exercise right to demand deed.
4. DEEDS.
Where a deed was deposited by grantor with a bank under instructions evidenced by memorandum reciting that deed was to be delivered to no one except grantor unless grantor died before calling for it and then to grantee, and bank was agent for grantor who retained right to control disposition of deed, and before death grantor gave memorandum to grantee with instructions to get his deed, place of deposit was immaterial in determining grantee's rights under deed.
APPEAL from the chancery court of Hancock county, HON. D.M. RUSSELL, Chancellor.
Robert L. Genin, of Bay St. Louis, for appellant.
A conveyance of the homestead by one spouse without the joinder of the other is void. When the deed now before the court was executed by Mrs. Williams and acknowledged before a notary public, all without the joinder by her husband, the land being their home at that time and for over forty years, the deed was a nullity and nothing could thereafter be done to validate it.
Hubbard v. Sage Land Improvement Co., 33 So. 413, 81 Miss. 616; Duncan v. Moore, 67 Miss. 136, 7 So. 221; Bolen v. Lilly Sons, 85 Miss. 344, 37 So. 811; Cummings v. Busby, 62 Miss. 195; Levis-Zukoski Mer. Co. v. McIntyre, 93 Miss. 806, 47 So. 435.
The court erred in holding that the deed to said land was delivered to the appellee by symbolic delivery during the lifetime of the grantor, while the actual delivery of the deed to the appellee was by an agent of the grantor on written instructions and after the death of the grantor.
Wilson v. Bridgeforth, 108 Miss. 199, 66 So. 528; Hall v. Waddill et al., 78 Miss. 26, 27 So. 937.
The depositary delivered the deed after the death of the grantor carrying out the grantor's written instructions, the grantee accepting the deed under those instructions. These written instructions state that the grantor had control of the deed at all times and if she, in person, called for the deed she had the right to withdraw it. There was no delivery, the deed was void and should be cancelled.
The court erred in holding that a receipt given to the grantor by the bank, when the deed was delivered to the bank, could be delivered to the grantee as a symbolic delivery of a deed, and thereby orally cancel the written instructions given to the grantor's agent with reference to the delivery of the deed.
Culy v. Upham, 135 Mich. 131, 97 N.W. 405, 106 Am. St. Rep. 388, Taft v. Taft, 59 Mich. 185, 26 N.W. 426, 60 Am. St. Rep. 291.
Grantee did not accept the delivery during the lifetime of the grantor, grantee waited until after the death of grantor to claim the deed at the bank. The delivery by the bank was no delivery. The order to deliver to the grantee is ineffective because the agency is terminated by the death of the grantor and there is then no one competent to deliver it.
16 Am. Jur. 520.
The case of Young v. Elgin (Miss.), 27 So. 595, is not in point. In that case the deed was in the possession of the grantor in her own home. In this case the grantor did not have possession and could not make delivery in the manner claimed.
W.W. Stockstill and Dan M. Russell, Jr., both of Bay St. Louis, for appellee.
If delivery to the bank under the circumstances was ineffectual, then as long as the deed remained in the bank undelivered it continued to be a mere written scroll until it was symbolically delivered to the grantee by delivering him the receipt which the bank had given her and telling him to go to the bank and get the deed. The fact that he did not do this until after the grantor's death is immaterial.
The final and complete act which makes a deed effectual is delivery, and delivery includes acceptance by the grantee.
Harkreader v. Clayton, 56 Miss. 383; Morgan v. Hazlehurst Lodge, 53 Miss. 674.
Delivery is largely a question of intention.
Hall v. Barnett, 71 Miss. 37, 14 So. 732; Wilson v. Bridgeforth, 108 Miss. 199, 66 So. 524; Beasley v. Beasley, 177 Miss. 522, 171 So. 680; Wall v. Wall, 30 Miss. 91; Young v. Elgin, 27 So. 595.
Where a delivery of a deed to a third party is insufficient in that the grantor has not effectually parted with control over the instrument, it may be rendered effective by subsequent acts and declarations of the grantor showing his intention to part with such control, although the depositary is not informed of the grantor's changed intention.
Hall v. Barnett, 71 Miss. 37, 14 So. 732; 18 C.J. 205, Sec. 101.
None of the cases cited by counsel for appellant on the question of the conveyance of a homestead without the contemporaneous assent and signature of both spouses has any application to the facts of this case. They all deal with the question of the conveyance of a homestead by one of the spouses without the signature of the other by the immediate delivery of the deed. A conveyance under such circumstances is, of course, void.
In the case at bar the deed was signed and acknowledged by the grantor several years before her death at a time when she and her first husband were living on the land, but at the date of the actual delivery of the deed to the grantee, whether this be considered as having taken place on the delivery of the card, or at the time the appellee received the deed from the bank, the grantor had become a femme sole, and the law did not require her to go through the useless formality of executing and delivering a new deed. Therefore, it was not a question of trying to breathe life into a void instrument, but was simply confirming and giving effect to an instrument which had hitherto been a mere written scroll.
Argued orally by R.L. Genin, for appellant, and by W.W. Stockstill and Dan M. Russell, Jr., for appellee.
Appellant, who was complainant in the trial court, filed a bill to cancel as a cloud upon her title to certain realty a deed from Mrs. Amanda Williams to the defendant. It was alleged that complainant was, as the adopted daughter of Mrs. Williams, who died intestate, her sole heir at law, and entitled to said property. The validity of the adoption proceedings are attacked by defendant, but for reasons hereinafter stated we find no occasion to examine this contention.
The instrument in question was signed and acknowledged by Mrs. Williams in 1931, at a time when she was married and living with her husband upon said property as a homestead. Her husband did not sign the instrument which was at such time deposited by the grantor with the Hancock County Bank under conditions and directions indicated by a memorandum delivered to the grantor as follows: "This is to be delivered to no one except Mrs. Amanda Williams unless she were to die before calling for it and then it is to be delivered to Clarence Moran." A similar notation was made upon the envelope containing the deed. Mr. Williams died in 1933, and Mrs. Williams in 1935 married Vincent Moran, the father of appellee. At the time of her death in 1937, Mrs. Williams (Moran) had again become a widow. In the meantime the instrument had remained in custody of the bank subject to the directions contained in the memorandum.
Shortly before grantor's death, while she was preparing to go to a hospital for a serious operation, she delivered to appellee the memorandum given to her by the depository bank, using, according to one of the witnesses then present, the following language: "Take this card and go get your deed at the bank. I don't feel like I am coming back." Corroboration as to substantially the same language was furnished by the witnesses, one of whom testified at one time that the language was substantially as quoted, at another time stated, "She said `Clarence take care of that card and when anything happens to me you go to the bank and get your deed and take care of everything.'" The brother of appellee testified that the grantor said to him a few days after she had gone to the hospital, "I gave Clarence the card to go get his deed out of the Hancock County Bank and you see that he does that and take it and have it recorded." There were other expressions by grantor showing her understanding of the effect of her declarations. See Beasley v. Beasley, 177 Miss. 522, 171 So. 680.
It is not our purpose to respond fully to appellant's contention that the deed to the homestead was void because executed by the wife without the signature of her husband, then living, for we hold that the deed was not fully executed as such until delivery. Authorities cited by appellant (Cummings v. Busby, 62 Miss. 195; Duncan v. Moore, 67 Miss. 136, 7 So. 221; Hubbard v. Sage Land Imp. Co., 81 Miss. 616, 33 So. 413; Bolen v. Lilly Son, 85 Miss. 344, 37 So. 811, 107 Am. St. Rep. 291; Levis-Zukoski v. McIntyre, 93 Miss. 806, 47 So. 435; Gardner v. Cook, 173 Miss. 244, 158 So. 150) deal with cases where there was actual delivery of a deed or deed of trust to the homestead without signature of the other spouse. Thus, our inquiry is not whether the instrument was void or voidable, but whether, in legal contemplation, it was a deed. The statement of the principle by which such conveyances are held void presupposes a deed, and such instrument is not a deed until delivery. In the meantime it is a mere scroll under control of the grantor who is free to withdraw it, destroy it, or complete its execution by delivery. The chancellor held that delivery of the card to appellee, under the circumstances, and in view of the declarations of the grantor, constituted delivery of the deed. With this conclusion we agree. There is no need to justify it by endowing the delivery of the card with special solemnity as a ceremonial investiture. Its efficacy is chiefly as part of the evidence of grantor's intention to effect delivery. It is true that it was intimately allied with the deed itself, serving as a receipt therefor from the depository, and as grantor's only available identifying symbol of the deed itself, yet its controlling relevancy is that it evidences grantor's retention of the right to direct its disposition, and its surrender by grantor to grantee gives finality to her purpose, and evidences a ripening of her intention.
The written directions to the bank unquestionably constituted the bank as agent of the grantor, rather than of the grantee and, unaffected by subsequent expressions or acts indicating a contrary intention, betokens not a delivery but a deposit. Wilson v. Bridgeforth, 108 Miss. 199, 66 So. 524, 528; Hall v. Waddill, 78 Miss. 16, 26, 27 So. 936, 28 So. 831. Grantor's deposit of the instrument with the bank may have imposed on the bank duties with regard thereto; but all rights were retained by the grantor. The effect of the deposit was much as if grantor had said to the bank, "You may not during my life deliver this deed to anyone but me, but I can do so."
It would seem clear that if appellee had proceeded at once to procure from the bank delivery of the deed pursuant to grantor's directions, and during her lifetime, title would then have been complete. Yet it is not significant that appellee deferred his demand until after grantor's death. It is his right to the deed and to its delivery which fixes this status, rather than the time at which he chose to exercise this right. 16 Am. Jur., p. 518, sec. 143.
Since the bank was agent of the grantor, who retained the right to control the disposition of the deed, and by an altered intention, gave an earlier maturity to a purpose formed six years before, the place of deposit is also without importance. In Young v. Elgin, 27 So. (Miss.) 595, 596, the place of deposit or safekeeping was the wardrobe of the grantor. While grantee's mother was preparing to leave home on account of her health she said to her daughter, "I have given you my home, and the deed to it is on top of the wardrobe, on this end, wrapped in a newspaper;" and after a kindly remonstrance by the daughter grantor added, "If anything happens, I want you to know where the deed is." This was the first knowledge gained by the grantee of the existence of the deed. It was held that a delivery was effected by the declared purpose and directions of the grantor. See, also, Moore v. Trott, 162 Cal. 268, 122 P. 462; 18 C.J., p. 205, sec. 101; Harkreader v. Clayton, 56 Miss. 383, 390, 31 Am. Rep. 369; Hall v. Barnett, 71 Miss. 37, 14 So. 732.
The chancellor was justified in finding that the grantor intended and effected delivery of the deed to appellee. Such conclusion pays deference not only to settled equitable principles, but also to the expressed intention and purpose of the grantor, and is just.
Affirmed.