Dolly Ladd v. Benoni Ladd, 14 Vt. 185

The opinion of the court was delivered by Royce, J. The whole case turns upon the validity of the deed from Pere G. Ladd to the defendant, as against the plaintiff’s right of dower. Several grounds have been taken in the argument against the sufficiency of that deed to defeat the plaintiff’s title, but since we regard the question upon the delivery of the deed as decisive, it will be unnecessary to discuss the other points made. Every deed of conveyance takes effect from its delivery, and, consequently, until that event, it cannot operate to pass the estate.

In this case the deed was signed, sealed, and acknowledged by the grantor, and by him placed in the hands of Kellogg, with instructions to keep the same until after the grantor’s death, and then to deliver it to the ’ defendant, but not before. It was kept and delivered according to those instructions; and the question is, at what time did this deed take effect', so as to pass the estate ? An obvious distinction exists between the case of delivering a deed to a third person without restrictions, and simply for the use of the grantee, and a delivery to such third person upon some condition, or with restrictions.

In the former case the depositary will be deemed a trustee or agent for the grantee alone; and, as the assent of the grantee will be presumed until he dissents, the deed takes full effect between the parties immediately. But in the latter case the operation of the deed is usually suspended until the condition is performed, or the restriction removed. In the mean time the estate remains in the grantor. This is always the result of such a delivery, provided the condition or restriction is one which the grantor had a right to impose, at the time he undertook to impose it.

And he may generally impose such conditions or restrictions as he thinks fit, so long as nothing has transpired which the law will regard as an effective delivery of the deed. It has, indeed, been held that a deliberate declaration of the grantor, that he executes and delivers the instrument as Ms deed, may amount to a legal delivery, so that conditions afterwards imposed will be unauthorized, and not binding upon the depositary.

Such a rule, however,.is not satisfied by the mere execution and acknowledgement of a deed in the usual manner, the grantee not being present, nor any one authorized by him to accept the deed, but requires some express declaration, indicating an intention, on the part of the grantor, that the instrument shall take immediate effect as a deed, or at least importing a waiver of all right or design to control its operation. The present case is silent as to any expressed intent of the grantor at the time of' executing the deed.

He kept it several weeks, and then delivered it to the depositary with the directions already stated. We are not at liberty to assume, that any other act towards a delivery of the deed took place during the grantor’s life; nor is any purpose of his to be inferred, except such as this act and these instructions had a natural tendency to show. It is true that Kellogg professed- to assume the custody of the deed as a trustee for the defendant. This was expressed in the receipt which he gave for it, and must have been known to the grantor.

But since he acted solely at the request and by the direction of the grantor, and not in virtue of any authority derived from the defendant, the character in which he undertook to hold the deed could not abrogate the instructions under which he received it. The case is, therefore, to be classed with those where the grantor rightfully imposes-a condition, or restriction, which has the effect to postpone the final delivery and effectual operation of the deed.

It follows from what has been said that this estate did not actually pass from the grantor during his life, and that he in fact died seized of the land in question. We have now to inquire whether this result should be controlled and altered by any legal intendment, or artificial construction. The complete delivery of a deed is not only essential to give it force and operation as a deed, but it is also required that the delivery should be made by the grantor, and to the grantee; though each is at liberty to act in person, or by an agent.

The transaction must be such, that, in its legal operation, the interest to be conveyed shall pass at once from the grantor to the grantee. This necessarily involves the proposition, that when the transmission of the estate takes place, (and this occurs upon the effectual delivery of the deed,) both parties must be in life, and that the grantor, at least, must be sui juris, and capable of making a proper delivery of his deed.

It is, therefore, a settled rule, when a deed is first delivered to a stranger, to await the happening of some future, event, and then to be delivered to the grantee, that if the parties are alive when the event happens, and the grantor is then competent to make such a conveyance, the second or final delivery is alone regarded, and the deed commences its operation after }he happening of the event' which authorized such final delivery. But cases sometimes occur where the parties to the deed do not remain in life, and competent to act.

The grantee may have died before the event happened which suspended the operation of the deed; the grantor may have died, as in this instance, or may have become incapacitated to act. Justice may nevertheless require that the deed should be sustained. This will depend upon the motive or consideration of the conveyance* the interests of others, not parties to the deed, being at the same time duly regarded.

Now as the ancestor is fully empowered by law to defeat his heirs by a will, it has been uniformly considered that they have no rights to interpose against the operation of such a deed, even though it be voluntary. It is but allowing the grantor to accomplish in one way, what he had an absolute and undisputed right to effect in another. In such a case the courts will, therefore* uphold the deed, by giving the ultimate delivery a relation back to the time of the first. By a legal fiction they will suppose the deed actually and fully delivered at the outset* because the conveyance must otherwise fail.

The question then arises, whether, as against the widow* justice requires that a voluntary conveyance, like the present, should be supported by the aid of fiction, — a legal intendment, contrary to the truth of the case.- There is, as we think, a manifest difference between those considerations of equity and merit, which a sense of moral justice will generally suggest in behalf of a widow, and such as usually apply to heirs. We therefore feel at liberty to refuse that artificial construction against her right, which we might be compelled to adopt against the claim of an heir.

And the same conclusion would seem to be justified by the single fact that the husband is disabled, in law, to defeat the right of dower by a will, whilst he can by that means effectually destroy the right of inheritance. It might be added that Pere G. Ladd, the grantor, having already devised this estate to the defendant, evidently designed the deed in question to operate as a confirmation of his will. It would probably have been viewed in the light of a testamentary disposition, had the testator seen fit to revoke his will, and to give this property a different destination.

If regarded in that light, it must at once yield to the widow’s right of dower. We deem it sufficient, however, to rest our decision upon the ground that the estate did not pass by the deed, for want of a legal delivery, until the right of dower had attached. Judgment affirmed.