Hutton v. Cramer , 10 Ariz. 110 ( 1906 )

SLOAN, J.

Appellant, Peter L. Hutton, as administrator of the estate of A. T. Bpley, deceased, brought suit in the district court of Gila County against John J. Cramer, appellee, to quiet the title to the Gem mining claim situate in the Globe mining district of said county. The ease was heard by the court without a jury, and a judgment entered for the appellee quieting the.latter’s title to said mine in accordance with the prayer of his cross-complaint. From this judgment the appeal is taken.

The facts, as disclosed by the record, are these: In 1903 A. T. Epley was the owner of the Gem mining claim. Being a man of advanced years and somewhat .feeble, he proposed to Cramer if the latter would agree to take care of him during his lifetime, to so arrange his affairs that Cramer should have the Gem mine and his other property upon his death. This Cramer agreed to do. In November, 1903, Epley met Cramer in the town of Globe, and said to him: “Mr. Cramer, I have the papers made out, and I would like to go and deposit these papers in your box in the First National Bank.” Cramer then accompanied Epley to the bank and introduced him to the cashier, and asked the latter to hand him his private bank box. Upon receiving the box Cramer and Epley withdrew to a private room, whereupon Epley placed in the box an envelope with Cramer’s name written thereon, and remarked at the time to Cramer: “This contains what I am going to give you after I am dead; keep that here until I am dead.” The box was then closed and returned to the cashier. Before leaving the bank Cramer requested the cashier to put Epley’s name on the box with his own name and to give Epley access to it at any time he might desire. The box was not thereafter opened until after Epley’s death, which occurred in 1904. After this transaction at the bank Cramer assumed control of the property with the knowledge of Epley, and did or caused to be, done the assessment work on the claim. After Epley’s death Cramer opened the box at the bank and took out the envelope placed therein by Epley, and found therein a deed made out to him by Epley of the Gem mining claim which he at once placed of record. He also found with the deed, inclosed in the envelope, a paper which read as follows: “Notice. 'To all whom it may concern: I, A. T. Epley, of the town of Globe, county of Gila, territory of Arizona, on this 7th day of November, A. D. 1903, have made two deeds of conveyance of all my real estate, of which I am possessed, as also a bill of sale of all my personal property of which I am possessed, to -John J. Cramer of Globe, Gila County, territory of Arizona, and have placed the said instruments so made into my private box in First National Bank, Globe, Arizona, to be had and held there by seal for delivery to said John J. Cramer, immediately upon my death, with the understanding that the valuable consideration by said John J. Cramer, so as aforesaid therefor is: (1) That he will cause upon my said death a respectful and honorable burial; (2) that said John J. Cramer has for times past extended every possible kindness to me; (3) that the said John J. Cramer has for many years been and is an oldtime friend; that, for the aforesaid considerations, I have thus conveyed to him, said John J. Cramer, all my real and personal property; and ask that the same be placed on record in the recorder’s office, Gila County, territory of Arizona, as evidence of title from myself to him, said John J. Cramer, immediately after decease and this to be the authority therefor. A. T. Epuey.” The trial court found that there was an actual delivery of the deed by Epley to Cramer during the lifetime of the former, and that the title to the Gem mine thereupon vested in the latter upon the death of the former. The correctness of this finding, as a matter of law, is the sole question raised by the appellant and discussed in the briefs.

It is evident from the facts above stated that Epley intended, by depositing the deed in Cramer’s bank box, to part with its possession, and it is likewise evident from his declarations and subsequent conduct that he had no intention of reserving the power of recalling the deed. It is true that the circumstances show that he could have regained possession of the deed had he so chosen. The arrangement made with the cashier of the bank granting Epley permission to have access at any time to the box and the papers therein was made by Cramer, and was not made through any suggestion or request coming from Epley. Nothing in his acts or in his written notice accompanying the deed negatives the view taken by the trial court in its findings that Epley intended irrevocably to place the deed in the bank bos to be there kept until his death. Such an act with such an intent constitutes in law a delivery and a transfer of title under the deed. It is a generally accepted rule of law that where a deed to real estate is handed to a third party to be kept until the death of the grantor, and then immediately to be delivered to the grantee, upon the death of the grantor title vests in the grantee as of the time when the deed was thus placed in escrow; and the law regards the legal effect of such a conditional delivery to be the same, after the death of the grantor, as if there had been an absolute delivery of the deed during the life of the grantor, and an immediate transfer of the title to the grantee, with- a reservation of a life estate by the grantor. Bury v. Young, 98 Cal. 446, 33 Pac. 338, 35 Am. St. Rep.. 186; Cook v. Brown, 34 N. H. 460; Prutsman v. Baker, 30 Wis. 650, 11 Am. Rep. 592; Thatcher v. St. Andrew’s Church, 37 Mich. 264. Under this rule of law, if the placing of the deed by Epley in the bank box be construed to have been in effect an escrow, and hence a conditional delivery, then, upon the death of Epley, title to the mine vested in Cramer. If the transaction cannot be construed as a conditional delivery/ then, under the finding of the court, which the evidence sustains, that Epley parted with the possession of the deed without intending to reserve any right of recall, it must be construed as an absolute delivery, the legal effect of which was to vest title in Cramer subject to the life interest retained by Epley. Hathaway v. Payne, 34 N. Y. 92; Foster v. Mansfield, 3 Met. 412, 37 Am. Dec. 154.

Whichever view be taken, therefore, the trial court was right in its conclusion of law that the title to the mine in question vested in appellee, and the judgment must therefore be affirmed.

KENT, C. J., DOAN, J., and CAMPBELL, J., concur.