1842.

Ladd v.

Ladd.

6

RUTLAND, ber, 1837; but that the deed was signed, sealed, and acFebruary, knowledged subsequently to the making of the will; that the said Peré G. Ladd retained the deed in his possession for a few weeks and then delivered it to John Kellogg, one of the witnesses thereto, and the executor of his last will, to keep in trust for the defendant and deliver it to him after the decease of the said Peré G. Ladd, when called for by the defendant, and not to deliver it until after the decease of said Peré G. Ladd; that, on this occasion, the said Kellogg executed a receipt therefor, of the same date with the deed, of the following tenor : "Received from Peré G. Ladd a deed executed by him to Benoni Ladd, quit-claiming to said. Benoni four hundred and fifty acres, more or less, of land, '(being the home farm of the said Peré G., as he calls it,) 'dated November, 29th, 1837, to keep in trust for said Be'noni, and I am to deliver the same to said Benoni, after the 'decease, of said Peré G. when called for by him;" that, at the time of the delivery of said deed to said Kellogg, the said Peré G. expressed his anxiety to said Kellogg to have the business done in such a manner as would give effect to the deed, and that after the decease of the said Pere G., which occurred on the 23d day of March, 1838, the said Kellogg delivered the said deed to the defendant.

The lands described in said deed were also devised to the defendant, by the said Pere G., in his last will and testa

ment.

The court decided, and so charged the jury, that the delivery of said deed did not take effect until after the death of the said Pere G. Ladd, so as to defeat the plaintiff's right of dower in the premises so conveyed; and that the plaintiff, as his widow, was entitled to dower therein as assigned to her by the probate court.

Under this decision and charge of the county court, the jury found a verdict for the plaintiff, and the defendant excepted.

E. N. Briggs and L. C. Kellogg, for defendant.

Was the plaintiff entitled to dower in the real estate described in Pere G. Ladd's deed to defendant, dated 29th November, 1837 ?

If the plaintiff was not entitled to dower in the real estate

February, 1842.

conveyed by that deed, the assignment of the land in ques- RUTLAND, tion, as dower, by the probate court, can have no effect. Sumner v. Parker, 7 Mass. R. 79. Hendrick & wife v. Cleveland, 2 Vt. R. 338.

I. We contend that the deed in question was a valid conveyance of the estate therein described, and made a good title in the defendant. 1. The deed was duly executed, acknowledged and recorded as required by statute. 2. It was executed upon a consideration both valuable and good. 3. There was a sufficient delivery to the defendant, the deed having been delivered to John Kellogg in trust for him, and that trust subsequently duly executed.

II. We contend that the deed took effect, and that the conveyance was complete, on the day of the date of the deed, by the delivery by the grantor, to John Kellogg, in trust, for the grantee. And the subsequent delivery to the defendant has relation back to that time.

It appears that Pere G. Ladd delivered the deed to John Kellogg as his, the grantor's deed' with the condition only that it was not to be delivered to defendant until after the death of the grantor; no other condition being annexed to the delivery.

When a deed is executed without the knowledge of the grantee, the law will presume his assent to receive it; and it will be good until his dissent is shown. In this case the grantee signified his assent by accepting the deed.

The delivery of a deed, duly executed, transfers the property and vests the property in the grantee without possession being given. In the case of Wheelwright v. Wheelwright, 2 Mass. R. 447, the deed was made by the grantor and delivered to a third person, with directions to him to keep the deed until the decease of the grantor, and then to deliver it to the grantee, the grantor intending to retain possession until his death. It was held that the deed took effect at the time of the delivery to the third person, and, upon full consideration, was held valid, so as to deprive the heir in tail of the estate so conveyed.

In Belden v. Carter, 4 Day, 166, the grantor executed a deed and delivered it to a third party saying 'take these 'deeds and keep them and if I never call for them deliver 'one to Parmelia and one to Noble after my death. If I call

Ladd

v.

Ladd.

RUTLAND,

February, 1842.

Ladd

v.

Ladd.

for them deliver them up to me.' And, notwithstanding this reservation, the court held that the deed took effect at the time of the delivery to the third person. Swift's Digest, 124. 1 Shep. Touch. 57. Jones v. Jones, 6 Conn. R. recognises the case of Belden v. Carter. Souverbye v. Arden, 1 Johns. Ch. R. 240. Stewart v. Stewart in 5 Conn. R. 317, is a case in every respect like the present; and an authority directly in point.

If the delivery of a deed be to a third person for the use of the grantee, though such third person be not the agent of the grantee, and the grantee does not know of the existence of the deed until after the death of the grantor, the deed is a good conveyance, and takes effect from the delivery to the third person. 4 Kent's Com. 455, and note. Bushell v. Pasmore, 6 Mod. R. 217.

In Hatch et al. v. Hatch et al. 9 Mass. R. 296, it was decided that the deed was delivered, and took effect upon a delivery to a third person, although not to be delivered to the grantee until the death of the grantor. Gurrows v. Knight, 5 Barn. & C. 671, and authorities cited. (12 C. L. R. 351.) Lloyd v. Bennett, 8 Carr. & P. 124, (34 C. L. R. 322.) 8. D. & R. 348.

III. In the case of Lindsay v. Lindsay, 11 Vt. R. 626, the court say, 'the delivery of a deed, either as an escrow or absolutely, is an act including intent.' There can be no doubt what the intent of the grantor was in this case; the case finds, that, at the time of the delivery of the deed to Kellogg, he expressed his anxiety that it should have effect as a deed, and that he delivered it to the grantee without any power to retake it. The grantor only retained possession, the title passed to the grantee unconditionally.

IV. If the delivery of the deed is treated in the nature of an escrow, it would be good to effect the conveyance. The delivery often has relation to the time it is delivered to the stranger or third person. 4 Kent's Com. 454. Swift's Digest, 179.

V. Is any different rule to obtain to favor an estate in dower? The widow of a deceased person is entitled to dower of one third part of the real estate of which such deceased person died seized in his own right. Dower, in this state, only attaches upon the decease of the husband,

and any deed, conveying the title of land, executed by the husband, will deprive the widow of dower, in the estate so conveyed. Stewart v. Stewart, 5 Conn. R. before cited.

VI. The deed is not to be treated as testamentary, unless it should become necessary so to treat it, to carry out the intention of the grantor, and to do substantial justice.

Justice does not, in this case, require it, and the grantor intended to avoid the effect of a devise by making the deed.

R. Pierpoint and S. Foot, for the plaintiff.

1. It is essential to the validity of a deed that it be delivered, and that there be an acceptance of it, either express or implied. And it is equally essential, to constitute a perfect and absolute delivery, that the grantor part with all control over the deed. These rules are undisputed, and too familiar to require discussion. Shep. Touch. 58. 10 Mass. 56. id. 456. 1 Johns. Cases, 81. id. 85. id. 114. 6 Cowen, 617. 12 Johns. R. 140. id. 418. 1 Johns. Ch. R. 240. id. 417. 12 Wendell, 105. 20 id. 44. 1 Pr. Wms.

577. 2 id. 358. 12 E. C. L. R. 351.

2. It is said that the deed takes effect by relation from the first delivery. This doctrine of relation is a mere fiction of the law, and is allowed only in cases of necessity, ut res valeat, to avoid injury to the operation of the deed from events happening between the first and second delivery. 4 Kent's Comm. 454. 1 Johns. Ch. R. 288. 1 Johns. Ch. R. 288. 10 E. C. L. R. 93. In Johnson v. Smith, 2 Burr. 950, Lord Mansfield lays down the true principle applicable to this case. He says, the court would not endure that a mere form or 'fiction of law, introduced for the sake of justice, should 'work a wrong, contrary to the real truth and substance of 'the thing.' See 3 Cowen, 75; 2 Johns. R. 510; 15 id. 309; 2 East, 256; 12 Johnson, R. 140; 4 id. 234; 2 id. 520.

And this doctrine of relation is held applicable only as between the parties to the deed. It is never adopted when strangers or third persons, not parties or privies, will be prejudiced. 12 Johns. R. 140. 4 id. 234. 3 Caines' R. 263.

Last of all, then, will courts of justice resort to this legal fiction to the prejudice of a right so strongly favored as that

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February,

1842.

Ladd

D.

Ladd.

RUTLAND, of dower has always been at common law and by statutory

February,

1842.

provisions.

3. A deed, or other instrument, made with a view to the disposition of the grantor's estate, after his decease, is to be considered only in the character of a testamentary devise. Pow. on Dev. 13. Sugden on Powers, 220. 4 Day, 66. 1 Mod. 117. 1 Ch. Cases, 248. In the well considered case of Habergham v. Vincent, 2 Ves. Jr. 204, Justice Buller says, that an instrument in any form, whether a deed poll, or an indenture, if the obvious purpose is not to take 'place till after the death of the person making it, shall 'operate as a will.'

The case presents the important fact, in this connection, that it was the intention of Pere G. Ladd to make a testamentary disposition of his estate; that he executed a will on the same day of the execution of the deed, purporting to convey by devise, to the defendant, among other things, the same premises described in the deed. The two acts were concurrent, having the same parties, and embracing the same subject matter, so far as the premises in question are concerned. They are to be taken and construed together. The same intention is manifest in both, and both equally inoperative during the life of the testator. In short, they are to be treated as one instrument. Raymond v. Roberts, 2 Aik. 204. 15 Johns. R. 458.

Dower is considered to be a continuation of the husband's estate, Reeve's, Dom. Rel. 56, and vests instanter upon his death, and no other right can intervene.

This deed is void, as being a fraud upon the widow's rights.

4. Dower is a right highly favored in law. It is not only a civil, but a moral right. 1 Cruise's Dig. 62. 2 Pr. Wms. 702. 5 Johns. Ch. R. 481.

Title to dower attaches upon marriage. It is inchoate during coverture, and consummate upon the death of the husband. It is a right founded in the highest sense of propriety and justice, in consideration of the disabilities imposed upon the wife. She can acquire no property of her own during coverture, and whatever she may receive by gift or inheritance, vests in the husband. Besides, her own labor may be regarded as contributing to the accumulation