Wheeler v. Kidder

Mr. Justice Green

delivered the opinion of the court, February 18, 1884.

The learned judge of the court below took this case and all the questions of fact involved in it from the jury, and directed a verdict for the defendant, upon the one ground that there was no delivery of the deed for the land in question to the plaintiff, and therefore she never had any title. We are of opinion that this was error. The deed conveyed the fee simple of the land to this plaintiff. She was then a child six years of age. The deed was executed on November 26, 1864, and passed the absolute title to Caroline E. Wheeler with this reservation, viz.: “ With the use of the said premises to E. M. Wheeler during the minority of the said Caroline E. Wheeler.” This gave an estate to E. M. Wheeler the father, in the land, during the minority of Caroline his daughter.

The whole title of the grantor was divested, and no portion of it did or could return to him. He delivered the deed on the day of its execution to E. M. Wheeler, who was practically one of the grantees having an interest under the conveyance. He was entitled by virtue of that interest to the possession of the land daring the minority of his daughter, and to the custody of the deed. Without doubt here was a complete and perfect delivery of the deed so far as the grantor was concerned. We are unable to understand what additional delivery was necessary in order to perfect the title of the daughter. The title of the father was but a paper title, and the same pape)1 which gave him his title gave title also to the daughter. There is no question of any creditors’ rights involved here in. this aspect of the case. The father’s possession would lead to inquiry, and inquiry would at once reveal the nature of his interest and the daughter’s title at the same time. As between the father and the daughter there was no necessity for any further delivery of the deed. He had paid the money for the land, and as it was for the benefit of a child no presumption of a resulting trust arose. Having an interest in the land under the deed he could receive and hold possession of the deed for both, and his possession of the instrument was also her possession. We cannot regard the transaction as inchoate as between the father and daughter. It was completed entirely when the land was conveyed by the execution and delivery of the deed. Had the title been made in fee simple to the father, and had he then executed a transfer to his daughter, there would be force in the position that a further act, by delivery, or at least by putting on record such transfer, would be necessary to complete the daughter’s title. Bat here everything was done which wás necessary to be done in order to vest, the fee simple title of the grantor in the daughter. Surely the father could not divest the title of the daughter by any act of his. His gift was of the money which paid for the land, and when it was paid the gift was consummated and irrevocable. How then could he become clothed with his daughter’s fee simple estate ? Not by way of resulting trust, because that would not arise upon a mere presumption, as in the case of a stranger. Not by adverse possession, because the possession was not adverse, but in accordance with the title. Not upon the theory of an unconsummated gift, because the father never owned the land, and never assumed to convey it, and there was no such thing as an incomplete conveyance in the case. His gift was of money, and that was completed. In the present state of the record no question of fraud upon the creditors of the father arises, and hence nothing can be said on that subject. All the assignments except the first are sustained.

Judgment reversed and new venire awarded.