The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1901-08-01


the grantees father once had an inter-
| est In the property, and the further fact
that the deceased declared he would
| deed or leave the property to his grand
son, might account for the existence or
the deed in this case. but would not
dispense with the necessity of delivery.
THE RESERVED RULINGS.
There have been two hearings in this
case. When the case was first tried,
| the testimony of Anna scurry. daugh-
ter of the deceased. was ruled out on
the ground of incompetency. During
| the noon hour she conveyed her inter-
est in her fathers estate to her chill.
dren. Her testimony was again ruled
out. After exceptions. / concluded tnat
| Mrs. Scurry was a competent Witness,
and granted another hearing or further
| trial. At the second trial, | heard the
| testimony of Mrs. Scurry for the plain
| tiff. and of Mrs. Gray, her sister. for
| the defendant. and of the defendant
| himself, reserving my decision as to the
| competency of the witnesses. After ex-
animation of the authorities, ] am sat
| isfled that each of these witnesses is
competent / therefore overrule the OBJ
| lection to the testimony of Anna
| Scurry, and note an exception for the
| defendant. | also overrule the objec-
| tions to the testimony of Emma Gray,
and of Angus G. Gray and in each in
stance note an exception for the plain
| tiff.
CONCLUSIONS OF LAW.
First-The said deed of Angus Cam
eron 10 Angus G. Gray is null and void
| for want of delivery.
Second-The plaintiff is entitled to
| decree setting aside said deed and di-
| recting the defendant, Angus 6. Gray,
| to re-Convey in fee the lands therein
| described to Angus Cameron, Duncan
| Cameron, Emma Gray, BhecCa CraNcr,
Mary can and Elizabeth Gray, children
of said Angus Cameron, deceased;
Christina Russell Davis. Angus Russell,
John Russell Thomas Russell, William
| Russell Minnie Russell. Jennie Rus
sell and Margaret Russell, children OF
| jeanette Cameron Russell deceased,
| daughter of said Angus Cameron, de-
| ceased, and Elizabeth j. Scurry, Irene
| Scurry, Daniel a. Scurry and Clara l..
Scurry, children and assigns of Anna
Scurry. a daughter of said Angus Cam
eron, deceased, their hens and assigns
| forever
Third--The mortgage for one thou
sand dollars. executed by said Angus
| 6. Gray In favor of Thomas w. ka$,
| dated 9TH October 1899, and recorded on
the same day. is not a valid lien or en-
cumbrancc upon the land therein dc
scribcd: NanamrinGs vs.. Morton,
VIII. 3Sl; Rock vs.. Clapp, 9S Pa. 5Si,
DISCUSSION.
As have already stated, the dispute
in this case depends upon the delivery
or non delivery of the deed from Angus
Cameron to Angus G. Gray, Defend
ants contention is that the Grantor
| directed his daughter Mrs. Scurry. to
deliver the deed after his death to his
grandson. Tho evidence in the case has
convinced me that no instructions were
given by the deceased concerning the
delivery Of the deed, and ! have 50
found. This evidence il sufficiently
strong not only to rcbut any preSump-
tion arising from the recording of the
| deed and the possession of 1t by the
grantee but to meet the requirements
of a court of equity as to the degree
of proof necessary to sustain the aver
mcntS of the bill of complaint.
There is no difficulty in ascertainng
the law on the question of the delivery
of deed The case of Cook vs.. Brown,
"a y. II. 460 states the general doctrine
in clear language: so long as deed
is within the control of the grantOr,
there is no delivery. Whether i'm the
hands Of third person or in the desk
of the grantor, Is immatcrlal, since in
either case he can destroy il at his
pleasure. TO make delivery good and
effective, the power of dominion over
the deed must be parted with .
and If the grantOr dies without part
ing with his control over the deed, ii
has not been delivered during his life,
| ana AFTER MS netttSt no one can nave
the power to deliver it,
WHAT SYLLABUS SAYS.
The case of Critchfield vs.. Critchncld.
a Pa. 100, is, of all the reported cases,
the closest i'm its facts to the ease at
bar. The syllabus correctly states the
facts. 1t is in part as follows: "A pre-
sumption arises from the recording of n
deed and its possession by the grantee,
that it has been duly delivered; but il
may be rebutted by proof that the
grantOr took away the deed immedi-
ately after its execution, and kept it
in his possession during his life.
when a grantOr had a deed drawn
by justice of the peace and executed
il, without any evidence of knowledge
of it by the grantee, and took it away,
and after the grantors death it was
found in his drawer and the grantee
had it recorded and subsequently con-
veyed the premises, it was held that,
though the Crantor subsequently de-
clared to a stranger that he had given
the land to his son-that he would keep
the title during his life, but that the
son would get the land after his death
the delivery was not established and
, the deed was insufficient to pass the
title"
In Dayton vs.. Newman, 10 Pa. 1914,
Justice Woodward says: Delivery may
be made by words alone. or by acts
alone. or by both together, but there
must be sufficient to show an intention
to pass the title"
The case of Blight VS.. Schenck. 10
Pa. 800, cited by defendants counsel. is
not in point, because the deed was left
with the magistrate after il was exc
Cuted Nor is Turner vs.. Warren, l60
: Pa. 1886, authority for the defendant,
because the intended husband had de-
! livered the deed to his intended Wife
before marriage, and the fact that after
his death the deed was found in the
safe, among his papers, made no diff
ference. Durand's appeal, 1l6 Pa. 90,
sustains plaintiffs position, See also
Benedict VS.. Benedict. lS7 Pa. 35l
The question of the competency OF
Mrs, SCurry, Mrs. Gray and Angus G.
Gray is not free from difficulty. This
probably does not apply to Mrs Scurry,
because, if incompetent before she
qualified herself by release of her in
tercst, | do not question the good faith
of this transaction. Under the author
ity of Hift VS. Ogle, l21 Pa. PA, she is
unGuestonably competent. The object
of the various statues relating to the
competency of witnesses was to pro-
duce equality. As was said i'm one case:
"EVidently ii was the true purpose ot
the statute to close the mouth OF him
who is adversary to the deceased as
signor.' AS authority, | cite Horne vs.
Clark, l26 Pa. All: BRACES Est. 1875 Pa,
6l9; Roger VS.. Ephrata borough, III
Pa. 429, Whether competent or not,
have considered the testimony of Mrs
Gray and Angus c, Gray in the con-
cluSiOns of fact reached in this case.
Let counsel prepare decree in ac-
cordance with the foregoing concus-
ions and findings and submit the same
| for approval within ten days from this
date, when further order will be made