Felt v. Felt , 1908 Mich. LEXIS 964 ( 1908 )

Hooker, J.

(after staling the. facts). Our examination ■ of the testimony has failed to convince us that this deed was obtained through fraud or undue influence, or that* it was made by an incompetent person or without consideration. A more important question, though one not raised in the bill, is whether the title passed under the deed. This point was raised by the learned circuit judge upon the hearing, and he held that the delivery was not such as to vest the title in Zara L. Felt.

To determine this question, we must ascertain the intent of the parties. If we can say that it was the design that the title should immediately pass to Zara by the delivery to the bank, the learned circuit judge was wrong in his conclusion; while, if it was the intention that the title should remain in Noah until his death, he was right in saying that the deed was testamentary in its character because subject to revocation under the rule of Culy v. Upham, 135 Mich. 131. This intent must be determined from the contract, and it seems obvious from the provisions of the writing on the envelope and those of the agreement, when viewed in the light of the transaction, that Noah Felt attempted to retain the title so long as he lived, erroneously supposing that the deed could become effective to pass title by delivery after his death. We must hold therefore that the title vested in the two brothers, William and Zara L. Felt, upon the death of their father.

It does not follow that complainant’s claim is a just one. The testimony shows that defendant Zara L. Felt was put in possession under a contract by which he was to receive the title to this land, provided he should support the grantor during life. He did this, and meantime he has put expensive improvements upon the land. He should therefore be entitled to a- specific performance which could be enforced on these proofs under the statute in a proper proceeding. His counsel suggests something of the kind as a reason for holding this deed valid. We cannot well do that, nor can we decree specific performance on these pleadings, but we can refuse partition upon the ground that complainant has no equitable title, leaving defendant to take such proceedings to perfect his title as may be open to him.

The bill will be dismissed, with costs of both courts.

Montgomery, Ostrander, Moore, and McAlvay, JJ., concurred.