Liebe v. Battmann , 33 Or. 241 ( 1898 )

Mr. Justice Wolverton

delivered the opinion of the court.

This is a suit to foreclose a mortgage made to secure the payment of a promissory note calling for $1,175, executed and delivered by the defendant Battmann to one R. G. Closter. The plaintiff claims title to- the note and mortgage as the executor of the last will and testament of Closter, while the defendant Schütz asserts ownership based upon an alleged gift to him by Closter. This presents the only question in the case, and, if plaintiff is the owner, he is entitled to have the mortgage foreclosed, but, if not, the suit should be dismissed.

The facts upon which it is sought to establish the gift are, in substance, as follows : Closter and Schütz had been intimate friends for many years, and on Friday, August 21, 1896, were living in a house which they had rented together, and where they ate at the same table. There was a large room in the building, opening out of which was a bedroom on the east and another on the south. Closter occupied the east room, and Schütz the one on the south., Schütz, who had been out the night before, came home about 5 o’clock in the morning, and, after a brief but friendly conversation with Closter, retired to his room, and about 6 o’clock heard the report of a pistol shot coming from Closter’s room, to which he hastened, and found that Closter had shot himself in the left side of the head, near the temple. A physician being called, Closter requested him “to make short work of it, that he wanted to die” ; but shortly he passed into a comatose state, from which he never rallied, and died four days thereafter. On a small table at the head of his bed was found a couple of large envelopes, both sealed and addressed, one to Charles A. Schütz, Esq., and the other to Mrs. Bertha Vierea. Schütz handed these envelopes to the plaintiff, who kept them until the death of Closter, when the one addressed to Schütz was opened, and found to contain the said note for $1,175, indorsed “B. G. Closter” in ink, and a note written in pencil upon a piece of another envelope in the following language, viz. : “Charlie, Dear Friend and Brother : Please see to, that Mrs. Bertha Vierea get the letter addressed to her, and advise her how to manage. Yours, B. G. Closter.” The envelope addressed to Mrs. Vierea was opened later, and was found to contain a note of Charles Stubling and wife to the deceased. Until the Monday preceding the tragedy, Closter had been living at the home of Mrs. Vierea, but, owing to some misunderstanding, he went to live with Schütz under the arrangement heretofore related. Lie^e testified that it was a habit of Closter’s to indorse all his notes, but Schütz testified that he saw the note in question about a week prior, and that it was not then indorsed ; that some time previous to that Closter was much discouraged touching his ability to collect the note, and said to witness, “I don’t think I will get anything out of it,” and “I might as well give it to you.” Witness also testified that Closter inquired of him whether, if he indorsed a note, he would have to transfer the mortgage also, and he told him that he thought the mortgage followed the note. Witness further stated that the indorsement appeared to have been freshly made. A will of the deceased was found bearing date March 30, 1893, by which he disposed of all his property, part to Mrs. Vieiea, and other portions of it to three of plaintiff’s children, and nominated plaintiff as executor.

Is there in this testimony sufficient to establish a gift of the note and mortgage by Closter to Schütz? The transaction is not supported by any valuable consideration, nor does anybody pretend that it is ;• so that, if there is no gift, Schutz’s title must fail. Nor can it make any material difference what may be the quality of the gift, whether inter vivos or causa mortis, as the essential elements which go to establish it in either case are the same, in so far as the pivotal facts give caste to the transaction. There must be an intention in the donor to give, and a delivery, to .pass the title. If causa mortis, these things must have been done under the apprehension of death from some present disease or some impending peril, but it is revocable and becomes void by recovery, escape from such peril, or the death of the donee before the donor : Ridden v. Thrall, 125 N. Y. 572 (11 L. R. A. 684, 21 Am. St. Rep. 758, 26 N. E. 627). We need only to consider the intention and the alleged delivery. That there was an intent to give we think is perfectly manifest from the evidence adduced. The inclosing of the indorsed promissory note in a sealed envelope, addressed to Schütz, together with the few lines written him touching the envelope addressed to Mrs. Vierea, indicates so strongly that such was the fact as to become insusceptible of serious dispute. It was held in Caldwell v. Wilson, 2 Speer, 75, that “ delivery (in ease of gift) is a transfer of possession, either by actual tradition from hand to hand, or by an expression of the donor’s willingness that the donee should take when the chattel was present, and in a situation to be taken by either party.” This implies, as the facts of the case warrant, that the donor axid donee shall also be mutually present. Andrews, J., in Beaver v. Beaver, 117 N. Y. 421-428 (15 Am. St. Rep. 531, 6 L. R. A. 403, 22 N. E. 940) says: “The delivery may be symbolical or actual; that is, by actually transferring the manual custody of the chattel to the donee, or giving to him the syxnbol which represents possession. In case of bonds, notes, or dioses in action, the delivery of the instrument which represents the debt is a gift of the debt, if that is the intention.” Many authorities concur in holding that a declaration of gift in writing, without a delivery of the chattel, is ineffectual to transfer title, because, not being founded upon a valuable consideration, the supposed coxitract is nudum pactum, and may be revoked at the will of the donor. And these, we are impressed, preponderate in weight of authority towards the establishment of the doctrine. See Young v. Young, 80 N. Y. 422 (36 Am. Rep. 634); Beaver v. Beaver, 117 N. Y. 421 (15 Am. St. Rep. 531, 22 N. E. 940, 6 L. R. A. 403); In re Crawford, 113 N. Y. 565 (5 L. R. A. 71, 21 N. E. 692); Connor v. Trawick’s Adm’r, 37 Ala. 289 (79 Am. Dec. 58); Wadd v. Hazelton, 137 N. Y. 215 (21 L. R. A. 693, 33 Am. St. Rep. 707, 33 N. E. 143.

There must be a parting with the dominion over the subject matter of the pretended gift, with a present design that the title shall pass out of the donor and to the donee, and this so fully and completely, to all intents and purposes, that, if the donor again resumes control over it without the consent of the donee, he becomes a trespasser, for which, he incurs a liability oyer to the donee except after revocation of a gift causa mortis. And so essential is delivery as a factor in the transaction that it is said : ‘ Intention cannot supply it; words cannot supply it; actions cannot supply it. It is an indispensable requisite, without which the gift fails, regardless of the consequences” : Thornt. Gifts, § 131. See, also, McCord's Adm’r v. McGord, 77 Mo. 166 (46 Am. Rep. 9); Smithy. Ferguson, 90 Ind. 229 (46 Am. Rep. 216); Hatch v. Atkinson, 56 Me. 324 (96 Am. Dec. 464); Wilcox v. Matteson, 53 Wis. 23 (40 Am. Rep. 754, 9 N. W. 814); Board of Sup’rs v. Auditor General, 68 Mich. 659-665 (36 N. W. 794); Gano v. Fisk, 43 Ohio St. 462 (54 Am. Rep. 819, 3 N. E. 532). The reason for the rule requiring delivery is obvious, and is founded upon “grounds of public policy and convenience, and to prevent mistake and imposition” : Noble v. Smith, 2 Johns. 52 (3 Am. Dec. 399).

Measured by the requirements of law, there was no delivery of the note to Schütz, nor does the fact that the note was indorsed dispense with its necessity. Such an indorsement, without consideration, could not have stronger force or operation than a parol gift or by writing not under seal. Whatever might have been Oloster’s intention in writing his name on the back of the note, he could revoke the gift before delivery simply by retaining the note, and Schütz could not assert title thereto until something else had been done to complete the transaction. It cannot be said that Closter ever parted with his dominion. If so, when did it occur? Assuredly not before he made the attempt upon his life, for Schütz was not present to receive it. Placing the note upon his table in the sealed envelope addressed to Schütz was not a relinquishment of possession, because it remained with him and under his complete and absolute control. He could, at any instant, while conscious and in his right mind, have bestowed it upon any other person, at his liking, and Schütz could not have prevented, nor would it have been an invasion of any rights acquired by reason of the indorsement and ensealment within the addressed envelope. And there could hare been none after the shooting, for the note was not taken from the table nor mentioned by the deceased. The case can be no stronger than if the sealed envelope had been found among his other effects, for it was upon his table and within a room occupied solely by him. It was his intention, no doubt, that Schütz should find and appropriate it, but the right to make an appropriation did not accrue within the lifetime of Closter, and Schütz cannot now claim the property as against Closter’s personal representative. The decree of the court below will therefore be reversed, and one here entered foreclosing the mortgage.

Reversed.