#### Louisa J. Ball et al. *v.*Emily Foreman et al.

Wliere a grantor in a deed delivers the same to a third person *as Ms deed,*to he delivered to the grantee at the death of the grantor, and the deed is accordingly delivered to the grantee upon the grantor’s death the title passes to the grantee as of the date of the first delivery.

Error to the District Court of Noble County.

The origina,! action was one in partition, brought by Mary Ellen Gregg, her husband uniting, who claimed to be a tenant in common with the defendants in the premises described in the petition.

Her title to the portion of the premises claimed by her, depended on the fact whether the same, with the remainder of the lands described in the petition, was owned by Jonas Ball, her grandfather, at the time of his decease. It was agreed upon the trial that said Jonas Ball died seized of all said premises, unless certain deeds put in evidence and copied below, were so delivered by said Jonas Ball in his lifetime as to vest the title to the lands therein described in the grantees therein named.

The first deed was as follows:

EXHIBIT A.

*“ Know all lien by these Presents:*That I, Jonas Ball, of the county of Noble and state of Ohio, in consideration of natural love and affection for my son Jonas Ball, Jr., and recognizing the high moral duty incumbent upon me as a parent to provide him, in view of his bodily infirmity, with compe*133tent means of support, have bargained and sold, and do hereby grant and convey unto the said Jonas Ball, Jr., his heirs and assigns forever, the following promises situate in the county of Noble, in the state of Ohio, and in the Zanesville land district, and bounded and described as follows, to wit: ” [Here follows a description of 280 acres of land.]

“Excepting and reserving to the said Jonas Ball, the grantor, the use, occupancy, enjoyment and full control of the premises aforesaid, and all the rents, profits and issues thereof full and complete for and during the term of his natural life: To have and to hold said premises, with the appurtenances, unto the said Jonas Ball, Jr., his heirs and assigns forever, from and after the decease of the said Jonas Ball, the grantor. In testimony whereof, the said Jonas Ball has hereunto set his hand and seal this sixteenth day of July, in the year of our Lord one thousand eight hundred and sixty-six.”

*His*

JONAS [X] BALL. [Seal.] ; *marls.*

The following is a copy of the second deed:

EXHIBIT B.

*“Knoio all Men by these Presents:*That I, Jonas Ball, of the county of Noble and state of Ohio, in consideration of natural love and affection for my daughters hereinafter named, and other good and valuable considerations to me paid and received, have bargained and sold, and do hereby grant and convey unto my said daughters Emily Foreman, Anna Hastings, Ruth Davis, Elizabeth Davis, Ellen Gregg, Hannah Granden and Martha Archer, their heirs and assigns forever, the following premises situate in the county of Noble, in the state of Ohio, and in the Zanesville land district, and bounded and described as follows, to wit: ” [Here follows a description of 326 acres and 16 perches of land.]

*“*Excepting and reserving to said Jonas Ball, the grantor, the use, occupancy, and enjoyment, full and complete control of the premises aforesaid, and all the rents, issues and profits thereof, full and complete, for and during the term of his natural life: To have and to hold, said premises, with the ap*134purtenances, unto the said ■ Emily Foreman, Anna Hastings, Ruth Davis, Elizabeth Davis, Ellen Gregg, Hannah Granden and Martha Archer, their heirs and assigns forever, from and after the decease of the said Jonas Ball, the grantor, in the following proportions, to wit: the said Emily Foreman to have the first sum of eight hundred dollars in value thereof in consideration of that sum paid by her to me, and the residue thereof to be held by the said Emily Foreman, Anna Hastings, Ruth Davis, Elizabeth Davis, Ellen Gregg, Hannah Granden and Martha Archer, in equal proportions, to them and their heirs, share and share alike.

“ In testimony whereof, the said Jonas Ball has hereunto set his hand and seal this twelfth day of November, in the year of our Lord one thousand eight hundred and sixty-six.”

*His*

JONAS [X] BALL. [Seal.]

*marie.*

On the trial, William H. Frazier was called and testified, that, *“*in 1866, he was practicing law in Caldwell, Ohio ; had known Jonas Ball, Sr., since the year 1852. Was his attorney, whom he consulted in almost all his business matters since the time I became acquainted with him until his death. On the 16th of July, 1866, at the request of Jonas Ball, Sr., I prepared a deed from him to his son Jonas Ball, Jr., defendant.”

[Said deed is here shown to witness and identified as the one prepared, á copy of which is attached to bill of exceptions marked “A.”]

“ On the occasion of preparing and executing this deed, he, Jonas Ball, Sr., informed witness that he intended, in a short time thereafter, to make two other deeds, one to his daughters and one to the children of his son Daniel Ball. To enable witness'to prepare the two deeds, he took minutes at that time, so he (witness) could prepare them at his leisure, and have them ready when he (Ball) came down and called for them. After he (Ball) had executed said deed to his son Jonas, he left it with me, and said that if anything happened to him before he got back, to deliver it to said Jonas Ball, his son. I prepared the two other deeds spoken of. and on the ¿2th of November •* *1351866, Jonas Ball, Sr., came down for the purpose of executing them. He said to witness that he had concluded to leave his daughter, Nancy Davis, out of the deed. Witness then erased her name from the deed before its execution, and made a note of it; and then executed the deed.” [The deed from Ball to his daughters was here shown witness and identified as the one referred to, a copy of which is hereto attached and made a part of this bill of exceptions, marked *“*B.”]

“ After the execution of the two deeds mentioned, he (Ball) left them in my custody. Nothing was said at that time about the delivery of the deeds. I thought he intended to deliver them himself during his lifetime. The reason I thought so was because he had preserved a life estate in them to himself. After the execution of these deeds, and within a year thereafter, I saw Jonas Ball, Sr., on one or more occasions. He said nothing about the delivery of the deeds. As nearly as I can remember, about one year after the execution of the two last deeds, Jonas Ball called on me at my office in Caldwell, and talked with me about these deeds he had theretofore executed and left with me. At this time, and during the conversation, he (Jonas Ball, Sr.) directed me to hold these deeds, and at his (Ball’s) death to hand or deliver the deeds to the proper parties named in the deeds.

This direction was repeated to me by him on one or more occasions afterward. After this conversation some time, I enclosed these deeds (together with some patents and old deeds having reference to the lands conveyed) in an envelope, and indorsed thereon the following words : *‘*Jonas Ball’s papers. The deeds within were delivered to me to be delivered or handed over to the proper parties at his death. Attest, W. H. Brazier.’ In making said indorsement on the envelope I endeavored to embody the directions given me by Jonas Ball, Sr., in relation to the delivery of the deeds. I made the indorsement on the envelope so that if anything happened to me, the intentions of Jonas Ball, Sr., might be carried out in relation to said deeds. At the time he (Ball) was speaking to me about preparing the two last deeds, he inquired of me if a deed could tnot be made to his son Daniel for his (Daniel’s) life, and then *136to Ms (Darnel’s) children, in such a way that Daniel’s creditors could not reach, it. I told him I knew of no way in which it could be done. At one time, after the execution of said deed, Jonas Ball, Sr., and his son Daniel, called on me, and told me that Daniel’s cMldren were threatening to put their father off the farm that he (Jonas Ball) had deeded to Daniel’s children, and inquired if they could do it. I told Mm that he had reserved a life estate in th e farm, in the deed, and could control it during Ms lifetime. This appeared to satisfy him. After I had made the indorsement on the envelope containing these deeds, I put the envelope, with the deeds, in my safe and kept them in my office. After I was elected to the bench, and absent from home frequently, 1 deposited the deeds in the safe of the Noble County National Bank, in Caldwell,- of which 1 am and was then president. After the death of Jonas Ball, Sr., a short time, I delivered the deed made to Jonas Ball, Jr., and the one to Daniel’s children, to James Ball, son of J onas Ball, Sr. I also left instructions with Mr. Lewis, cashier, that in ease any of the grantees named in the deed to Ball’s daughters called for it, to deliver it to them. At the time Jonas Ball, Sr., called on me to prepare said deed, he was alone, and all the conversations I had with him about the deeds (except the one in which Daniel’was with him), we were alone. Jonas Ball, Sr., had full capacity to transact business at all the conferences we had in relation to said deeds, and at their execution.”

The deed to the daughters was delivered to their agent by said cashier.

The defendants then produced James Ball, who testified as follows: “ Am son of Jonas Ball, deceased.' I got the deeds spoken of from Jonas Balito Jonas Ball, Jr., and Daniel Ball’s cMldren from Judge Frazier and took them to the recorder’s office for record. I was acting as the agent of Jonas Ball, Jr., and Daniel Ball’s children, in receiving said deeds and entering them for record.”

James Ball further testified, that some time before his father’s death, he had a conversation with his father, in which he (witness) advised his father, as he was getting old, he ought *137to fix up liis business; in reply bis father told bim (witness) tbat be bad already fixed up bis business and made deeds, and bad left tbem witb Frazier, of Caldwell, to be by bim delivered at bis death to the proper parties. Witness has frequently beard bis father say be was going to give bis son Jcnas Ball, Jr., the home farm. Father was afraid tbat bis son Jonas would become a charge, by reason of being badly crippled in bis limbs almost from bis infancy, so as to render him almost incapable of performing manual labor.

Other testimony was given, which it is not necessary to state, as the following embodies the substantial facts relative to the delivery of the deeds. The district court found that the deeds were so delivered as to vest in the grantees therein named the title to the land, and gave judgment dismissing the petition. It is the object of the present proceedings in error to reverse tbat judgment.

*M. M.*Granger, with whom were *Chambers & Gibbs,*for plaintiff in error:

The only question is, were the deeds delivered in the life time of the grantor ? Neither deed was so delivered unless the grantor (Jonas Ball, Sr.), when “be directed” bis lawyer to bold the deeds and band and deliver tbem to the proper parties after the grantor’s death, so parted witb control over these papers tbat be could not thereafter lawfully revoke tbat *“*direction ” and require bis lawyer to obey a different instruction. Tbat Jonas Ball considered himself as still controlling' the papers is shown by bis repeating bis direction, from time to time, down to and after the deposit in the bank. Judge Frazier deemed himself subject to such instructions, and received tbem as from one entitled to give tbem; in no instance informing the grantor tbat bis right to instruct bad ceased. He who “ directs ” can revoke bis order or direction. Nothing in Judge Frazier’s history of what was done even tended to prove tbat be bad any right to bold the papers in any other manner than as subject to the will or instruction of bis client. In support of the rule of law under which plaintiffs in error claim a reversal of the decree of the district court, I cite: *138*Cook*v. *Brown,*34 N. H. 470, 476. “ The depositary must have had such a dominion, over the' deed during the lifetime of the grantor as the latter could not interfere with.” See also the following authorities cited by the New Hampshire court: *Parker*v. *Dustin,*2 Foster, 424; *Doe*v. Knight, 5 Barn. & Cresw. 671; *Commercial Bank*v. *Restlers,*1 Halstead Ch. 430 ; *Baldwin*v. *Maulsby,*5 Wend. 505 ; *Maynard*v. *Maynard,*10 Mass. 456; *Jackson*v. *Phipps,*12 Johns. 421; *Jackson*v. *Dunlap,*1 Johns. Cas. 114; *Harper*v. *Ramsbottom,*6 Taunt. 12; *Haberghem*v. *Vincent,*2 Ves. Jr. 231. See also, *Prutsman*v. *Baker,*11 Am. Rep. 592, and same case in 30 Wisc. 644 ; also *Brown*v. Brown, 66 Maine, 316 ; and *Hawkes v. Pike,*105 Mass. 560, 562 ; *Block*v. *Hoyt,*33 Ohio St. 203; *Crooks*v. *Crooks,*34 Ohio St. 610. Even if the delivery of a deed to a third party may under ordinary circumstances carry a presumption that the grantor parts with all control not expressly reserved—does such presumption arise, where *(a)*the third party is the grantor’s own lawyer, to whom he resorted for counsel for years before and for years after the execution of the deed, and who had prepared the deed, as his attorney ? And where (b) the deed had already remained for a considerable period in the attorney’s hand, subject to instructions from time to time by the grantor, and was not seen or handled by either at the time the instructions for delivery after death were given ? And where (c) the grantor continued thereafter to repeat directions as if he had a right to give them, and the lawyer continued to receive them as if rightfully given ?

*Belford & Okey*and *D. S. Spriggs,*for defendants in error:

The burden is on the plaintiffs in error to show that the grantor reserved control over the deeds. *Crooks*v. *Crooks,*34 Ohio St. 610. No such testimony is found in this case. By the testimony in this case it clearly appears that Jonas Ball, Sr., executed the deeds in question and delivered them to Judge Frazier to be delivered by him, Frazier, after Ball’s death, and that the deeds were delivered after the death of said *139grantor to the grantees, therefore the title passed, and is vested m the grantees. *Wheelright*v. Wheebright, 3 Am. Dec. 66; *Hatch*v. Hatch, 6 Am. Dec. 67; *Foster*v. Mansfield, 3 Met. 412 ; *Mathers*v. *Carliss,*103 Mass. 568 ; *Hathaway*v. *Payne,*34 N. Y. 92; *Stephens*v. *Rinehart,*72 Pa. St. 434 ; *Stone*v. *Duvall,*77 Ill. 475; *Wallace*v. *Harris,*32 Mich. 380; *Thatcher*v. *St. Andrew’s Church,*37 Mich. 264. And we invite special attention to the case of *Jones*v. *Jones,*16 Am. Dec. 35, and the note thereto collecting authorities; to the cases of *Wheelright*v. *Wheebright,*2 Mass. 446 or 3 Am. Dec. 66, and of *Hathaway*v. *Payne,*34 N. Y. 92, we also invite special attention. On the question of delivery we also refer the court to 2 Hilliard on Real Property, 284, §§ 114, 116, 133, 141, 142, 151; 3 Washburn on Real Property, 259, §§ 28, 34, 41, 42 ; 13 Johns. 284*; Mitchel*v. *Ryan, 3*Ohio St. 380; *Black*v. *Hoyt,*33 Ohio St. 203.

Boynton, O. J.

The following propositions relative to the delivery of deeds seem to be well established, both upon principle and authority.

1st. Where the grantor places in the hands of a depositary, a deed to be delivered to the grantee upon the death of the grantor, reserving the right or j>ower to recall the deed at any time before his death, there is no delivery, and the deed passes no title to the premises therein described. In such case the depositary is the agent of the grantor, and holds the deed subject to his direction and control. *Shirley*v. *Ayres,*14 Ohio, 307; *Cook*v. *Brown,*34 N. H. 460; *Prutsman*v. *Baker,*30 Wis. 644.

2d. But where the grantor delivers the writing *as his deed*to the depositary, to be delivered to the grantee at his death, or on some future event, it is the grantor’s deed presently, and the depositary becomes a trustee of the grantee. *Crooks*v. *Crooks,*34 Ohio St. 6l0; *Mitchell*v. *Ryan,*3 Ohio St. *377; Wheelwright*v. *Wheelwright,*2 Mass. 452 ; *Foster*v. *Mansfield,*3 Met. 412*; Mathers*v. *Corliss,*103 Mass. 568; *Hathaway*v. *Payne,*34 N. Y. 92. In such case the deed passes a *140present interest to be enjoyed in the future. *Ruggles*v. *Lawson,*13 Johns. 286 ; *Tooley*v. *Dibble,*2 Hill, 641.

The district court found from the evidence that the deeds of Jonas Ball, Sr., deposited with Frazier were delivered to the respective parties for whom they were intended, as of the date that Frazier was directed to retain them and to deliver them to the grantees upon his, the grantor’s death. The case therefore was* held to fall within the second of the above classes. The question arising upon the record, and the only one, is, did the district court err in so finding ? Without undertaking a review, in detail, of the evidence, I will mention a few of the circumstances that lead us to agree with the district court in the view it took of the case. It appears from the testimony of Judge Frazier that at the time the grantor executed the two deeds, the delivery of which is the subject of controversy, he executed another to the children of his son Daniel, and left the three to be delivered respectively to the grantees therein named, after and upon his decease. While the three deeds were in possession of the witness and during the life of the grantor, he, the grantor, in company with Daniel, called upon the witness, and informed him that Daniel’s children threatened, to put their father off the farm that he *had deeded*to them, and inquired into their power to do so.

Why make this inquiry, if within his understanding, the deed had not taken effect ? Had he constituted Frazier bis agent, charged only with the duty to retain the manual possession of deeds under which no interest was intended to pass until after his decease, it seems highly improbable that he would have made inquiry as to the effect of a deed which he must have known was entirely without operation as a conveyance. Again, in each of the deeds, he was careful to reserve a life estate in himself, postponing the enjoyment in possession of the interest conveyed until after his decease. If the grantor intended no present interest to vest in the grantees, why make this reservation ? If the right of property was not to vest until the right of possession attached, and both were intended to be postponed until after his death, the reservation in the deed of the right of occupancy during the life of the grantor, was an act wholly *141•without efficacy or effect. How can a reservation be made where no estate is granted ? How can a life estate be reserved by the grantor if the grant does not take effect until he dies ?

Qn the other hand, the act of reserving a life estate admits of a very reasonable explanation on the theory that the grantor intended the delivery to operate as a conveyance of a present estate to be enjoyed in the future, as in such case it is held, that where the grantee obtains the deed from the trustee before the event occurs upon which the second delivery was to be. made, the grantor cannot avoid the deed by a plea of *non est faeimm,*whether generally or specially pleaded. *Wheelwright*v. *Wheelwright, supra.*

Hence the reservation in the deeds of the right to control the possession and to receive the rents and profits was a safeguard against any controversy concerning the nse, in case the deeds fell into the hands of the grantees prior to the death of the grantor. It is true that the *habendum*clause in the deeds is to the effect that the grantees, their heirs and assigns, are to have and hold the premises with the appurtenances, *“*from and after the decease of the grantor.” Conceding the usual effect of this clause in a deed to be, to define the extent of the ownership in the thing granted, to be held and enjoyed by the grantee, yet it is not an essential part of a deed, and its effect may not only be qualified and restrained by other parts of the deed, but where it is repugnant to the grant, it has no validity or effect whatever. It always yields to the manifest intent and terms of the grant. *Flagg*v. *Eames,*40 Vt. 16.

In *Jackson*v. *Meyers,*3 Johns. 395, Chancellor Kent states the rule as follows : “ The intent, when apparent and not repugnant to any rule of law, will control technical terms, for the intent, and not the words, is the essence of every agreement. In the exposition of deeds, the construction must be upon the view and comparison of the whole instrument, and with an endeavor to give every part of it meaning and effect.”

In Shepard’s Touchstone, 106, it is said the *habendum,*as all other parts of a deed, for the most part, shall be taken most strongly against the grantor, and most in advantage of the grantee, yet so as withal it shall be construed as near the intent *142of the parties as may be, as in all the cases following doth appear. See Wash, on Real Prop. 483. Applying these rules of interpretation, we think it manifest that the grantor did not intend by the language of the *habendum*to qualify or limit the estate granted. The reservation in the deeds, as well as the facts surrounding their deposit with Frazier, is entirely inconsistent with such an intent. When the grantor was advised by his son that as he was getting old he ought to fix up his business, he informed the son that he had already done so, that he had made deeds and left them with Frazier to be delivered to the proper parties at his decease. The case in its circumstances is quite as strong in favor of the grantees as was *Crook*v. Crook, *supra,*where it was held that the title passed.

*Judgment affirmed.*