This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
797; Maxwell v. Harper, 51 Wash. 351, 98 Pac. 756.
90. Kirkwood v. Smith, 212 111. 395, 72 N. E. 427; Owen v. Williams, 114 Ind. 179, 15 N. E. 678; Gideon v. Gideon, 99 Kan. 332, 161 Pac. 595; Meech v. Wilder, 130 Mich. 29, 89 N. W. 556; Dickson v. Miller, 124 Minn. 346, 145 N. W. 112; Shaffer v. Smith, 53 Okla. 352, 156 Pac. 1158.
Applying this latter theory, in accordance with the views previously indicated, while the delivery is to be regarded as occurring at the time at which it actually does occur, the title does not pass, that is, the grantee does not acquire any estate, until the death of the grantor. The delivery is effective as against subsequent donees, grantees and attaching and judgment creditors, except in so far as they stand in the position of innocent purchasers for value.91 And so the death of the grantee after the delivery and before the grantor's death docs not affect the validity of the delivery and, upon the grantor's death, an estate becomes vested in the grantee's heir.92 On the other hand, no estate vests in the grantee or grantee's heir until the grantor's death, until, that is, the condition named is satisfied.
That the grantor, in handing the instrument to the depositary, retains a right to control its operation, a right, for instance, to withdraw and cancel it, precludes the physical transfer to the depositary from operating as a delivery, in the case of an instrument which is to take effect on the grantor's death,93 as in the case of an instrument which is to take effect on the satisfaction of any other condition.94 As before remarked, a delivery which the grantor can, at his option, treat as not a delivery, is incomprehensible, and cases which recognize a delivery in spite of such retention of control,95 cannot be supported on principle. If, however, no such power of control is retained, the mere fact that the depositary allows the grantor to resume possession of the instrument,96 or that he would do so if requested,97 does not affect the fact of delivery.
91. To this effect appear to be Wittenbrock v. Cass, 110 Cal. 1, 42 Pac. 300; Grilley v. Atkins, 7? Conn. 380, 4 L. R. A. (N. S.) 816, 112 Am. St. Rep. 152, 62 Atl. 337; Nowakowski v. Sobeziak, 270 111. 622, 110 N. E. 809; Smiley v. Smiley, 114 Ind. 258, 16 N. E. 585; Owen v. Williams, 114 Ind. 179, 15 N. E. 678; Brown v. Austen (N. Y.) 35 Barb. 341; Ran-ken v. Donovan, 166 N. Y. 626, 46 App. Div. 225. But in Rathmell v. Shirley, 69 Ohio St. 187, persons who gave credit to the grantor in ignorance of the conveyance so delivered were given priority, and in Ladd v. Ladd, 14 Vt. 185, the widow by a marriage subsequent to such delivery was regarded as entitled to dower.
92. Stone v. Duvall, 77 111. 475. And compare Stonehlll v. Hastings, 202 N. V. 115, 94 N. E. 1068.
93. Seeley v. Curts, 180 Ala. 445, Ann. Cas. 1915C, 381, 61 So. 807; Bury v. Young, 98 Cal. 446, 35 Am. St. Rep. 186, 33 Pac. 338; Williams v. Kidd, 170 Cal. 631, Ann. Cas. 1916E, 703, 151 Pac. 1; Wilson v. Wilson, 158 111. 567, 49 Am. St. Rep. 176; Kunkel v. Johnson, 268 111. 422, 109 N. E. 279; Osborne v. Eslinger, 155 Ind. 351, 80 Am. St. Rep. 240; Brown v. Brown, 66 Me. 316; Burk v. Sproat, 96 Mich. 404, 55 N. W. 985; Dickson v. Miller, 124 Minn. 346, 145 N. W. 112; Cook v. Brown, 34 N. H. 460; Saltzsieder v. Saltzsieder, 219 N. Y. 523, 114 N. E. 856; Hud-dleston v. Hardy, 164 N. C. 210, 80 S. E. 158; Arnegaard v. Arnegaard, 7 N. D. 475, 41 L. R. A. 258, 75 N. W. 797; Williams v. Schatz, 42 Ohio St. 47; Thrush v. Thrush, 63 Ore. 143, 125 Pac. 267, 126 Pac. 994; Johnson v. Johnson, 24 R. I. 57; Showalter v. Spangler, 93 Wash. 43, 160 Pac. 1042; Williams v. Daubner, 103 Wis. 521, 74 Am. St. Rep.
94. Ante, this section, notes 29-35.
95. Woodward v. Camp, 22 Conn. 457 (but see Grilley v. Atkins, 78 Conn. 380, 4 L. R. A. (N. S.) 816, 112 Am. St. Rep. 154, 62 Atl. 337) ; Lippold v. Lippold, 112 Iowa, 134, 84 Am. St. Rep. 331; Daggett v. Simonds, 173 Mass. 340, 46 L. R. A. 332; Ruggles v. Lawson, 13 Johns. (N. Y.) 285, 7 Am. Dec. 375; Henry v. Phillips, 105 Tex. 459, 151 S. W. 533.
96. Tweedale v. Barnett, 172 Cal. 271, 156 Pac. 483; Foreman v. Archer, 130 Iowa, 49; Peterson v. Bisbee, 191 Mich. 439, 158 N. W. 134; Thrush v. Thrush, 63 Ore. 143, 125 Pac. 267', 126 Pac. 994. But this has been referred to as evidence that there was originally no valid delivery. Tweedale v. Barnett, 172 Cal. 271, 156 Pac. 483; O'brien v. O'brien, 19 N. D. 713, 125 N. W. 307.
97. Loomis v. Loomis, 178
Decisions to the effect that there is no valid delivery if it is conditioned on the grantor's death within a period named,98 or on his death before the death of the grantee," appear to be decidedly questionable. They are based on the assumption, erroneous, it is submitted, that in such case the grantor retains control of the operation of the instrument. It would hardly be contended that in the analogous case of a delivery conditioned on the payment of the purchase money within a time named, the grantor retains such control, and that there is consequently no valid delivery. That the grantor expressly retains the privilege of cancelling the instrument in case the grantee fails to support her for the balance of her life involves no such retention of control as to affect the validity of the delivery, it involving merely a right to terminate the estate created, in case the named contingency occurs.1
It is sometimes said of such a delivery with reference to the grantor's death, that the deed becomes operative upon its "delivery" by the custodian to the grantee after the grantor's death,2 but, it is conceived, any such reference to a "second delivery," so called, meaning thereby a manual transfer by the custodian of the instrument to the grantee, introduces an entirely erroneous conception. Assuming, as is no doubt ordinarily the case, that the grantor intends the instrument to be fully effective upon his death even though the custodian does not hand the instrument to the grantee, such physimich. 221, 144 N. W. 552; White v. Watts, 118 Iowa, 549, 92 N. W. 660; Maxwell v. Harper, 51 Wash. 351, 98 Pac. 756.
98. Long v. Ryan, 166 Cal. 442, 137 Pac. 29.
99. Kenney v. Parks, 125 Cal. 146, 57 Pac. 772; Dunlap v. Marnell, 95 Neh. 535, 145 N. W. 1017.
1. Malley v. Quinn, 132 Minn. 254, 156 N. W. 263; Phifer v.
Mullis, 167 N. C. 405, 83 S. E. 582.
2. Owen v. Williams. 114 Ind 179, 15 N. E. 678; Haeg v. Haeg, 53 Minn. 33, 55 N. W. 1114; Dickson v. Miller, 124 Minn. 346, 145 N. W. 112; Williams v. Latham, 113 Mo. 165, 20 S. W. 99; Tooley v. Dibble, 2 Hill. (N. Y.) 641; Rosseau v. Bleau,131 N.y . 177. 27 Am. St. Rep. 57S. 30 N. E. 52; Stonehill cal transfer to the grantee is absolutely immaterial, and the instrument becomes operative upon his death by reason of "the first and only delivery."3 If the grantor intends such a manual transfer to be a part of the condition of the delivery, it must of course be made in order to render the instrument operative, but the manual transfer would not constitute the delivery of the conveyance, in the technical sense. This has already taken place, and moreover a deed of conveyance cannot be delivered after the death of the grantor.4