Atchison v. Atchison ( 1946 )

RILEY, J.

(dissenting). A warranty deed was executed October 15, 1914. The grantor conveyed land to his mother. He was at the time indebted to her in a substantial amount. Grantor placed the instrument in the hands of a third person. It was to be delivered to grantee by the depositary upon condition that grantor predecease his mother. That condition was fulfilled. In my opinion, the deed effectively conveyed right of posession and title to the land. Shaffer v. Smith, 53 Okla. 352, 156 P. 1188; Kay v. Walling, 98 Okla. 258, 225 P. 384; McCaw v. Hartman, 190 Okla. 264, 122 P. 2d 999.

The mere fact that grantor, subsequent to time of the escrow, by which on fulfillment of the condition, parted with title, continued throughout his lifetime to exercise dominion over the land, did not defeat the effectiveness of the grant.

“A future estate may be limited by act of the party to commence in possession at a future day, either without the intervention of a precedent estate, or on the termination, by the lapse of time, or otherwise . . .” 60 O.S. 1941 §28.

“. . . a freehold estate . . . may be created to commence at a future day ... A fee may be limited . . . upon a contingency . . .” 60 O.S. 1941 §35.

“Where the owner of realty executes a deed thereto and places it beyond recall in the hands of a third person, to be delivered to the grantees, on the grantor’s death, there is a ‘conveyance’ passing title to the realty in praesenti with right to possession postponed until grantor’s death.” Maynard v. Hustead (Hurst, J.) 185 Okla. 20, 90 P. 2d 30; 26 C. J. S. pp. 246-247, para. 45-46.

The grantor’s act in placing his deed beyond his power.to recall so long as grantor and grantee were alive, yet limiting delivery of the deed upon the contingency of grantor’s death prior to that of grantee, with conditions fulfilled, constituted a conveyance. Anno. 52 A. L. R. 1222.

Seisen in real property once was accomplished by a manual-delivery of a token, such as a twig from a tree upon the.land, or a clod of its dirt. There can be no doubt that a grantor may, as in the case at bar, by deed limit a grant upon the happening of a future event such as payment of the consideration or any other condition. That which might accomplish by. deed, by act may be done. The judgment should be affirmed.