1. A deed to land must be in writing, signed by the maker, attested by at least two witnesses, and delivered to the purchaser, or someone for him. Delivery, actual or constructive, must be made during the lifetime of the grantor.
2. Where an owner of land signed an instrument in the form of a deed, and mailed it with a letter to his brother stating, "If anything happens to me, you have this paper recorded at once, and turn over to Stella [the writer's wife]. If living, mark the envelope so you will know what it is, and take care of it." Held, that according to this letter the writer intended for his brother to act as his agent to deliver the deed after his death, and that his death terminated such agency thus preventing delivery. There being no other evidence of delivery either actual or constructive, to any grantee, the judge, trying the case without a jury, did not err in finding that the deed had never been delivered and decreeing its cancellation as prayed by the administrator of the so-called grantor.
No. 14771. MARCH 7, 1944.
Arthur H. Littleton, as administrator of the estate of J. W. Cooper, deceased, instituted an action in equity against Mrs. Stella Jackson Cooper, widow of the deceased, and W. Garland Cooper and others, who were brothers and sisters, nieces and nephews, of the deceased, the object of the suit being cancellation of an instrument in the form of a deed, which appeared to have been signed by the deceased several months before his death. It was alleged that the deed was never delivered and accepted during the lifetime of the grantor, that it constitutes a cloud upon the property therein described, and that it is necessary that the deed should be delivered up and cancelled before petitioner can proceed fully to administer the estate.
Mrs. Stella Jackson Cooper, the widow, filed no answer. The other defendants, consisting of brothers and sisters of the deceased and children of deceased brothers and sisters, filed an answer in which they denied the allegations as to non-delivery, and prayed for a decree to the effect that they have a vested remainder in the land described after the termination of the life-estate thereby conveyed to Mrs. Stella Jackson Cooper. Other averments in the pleadings need not be stated.
By consent the case was tried before the judge without a jury, upon an agreed statement of facts. The issues presented were whether a certain deed executed by J. W. Cooper on May 28, 1942, was ever delivered, and if delivered, who were the remaindermen intended by the grantor to take the property at the death of the life-tenant, the deed by its language having purported to convey a life-estate to Mrs. Stella Jackson Cooper, wife of the grantor, "for and during her natural life to be used and enjoyed in any manner she deems best and at her death said property to go to the legal heirs of the party of the first part." The case was tried on October 28, 1943.
The agreed statement was substantially as follows: Stella J. Cooper was the wife of J. W. Cooper; they had no children, and J. W. Cooper had no children by any previous marriage. J. W. Cooper died on February 22, 1943, and Arthur H. Littleton was duly appointed and qualified as his administrator. Mrs. Stella J. Cooper, the widow, is still in life. At the time of his death, said J. W. Cooper left surviving him certain brothers and sisters, nieces and nephews, who are parties defendant.
On November 6, 1937, the said J. W. Cooper executed a will, which has never been probated, but in which according to one item he bequeathed all of his property, both real and personal, to his wife for life, with remainder to his "brothers and sisters living." The deed in question was signed and properly attested on May 28, 1942, and on the same day was mailed to W. Garland Cooper, a brother, along with the following letter: "Dear Brother: Am not feeling so well, asthma bothering me. Am in town having a paper fixed up. If anything happens to me, you have this paper recorded at once and turn over to Stella. If living, mark the envelope so you will know what it is and take care of it. Am mailing it to you. Write and come when you can. Your loving brother, J. W. Cooper." In compliance with the instructions contained in this letter, the said W. Garland Cooper held said deed until the death of J. W. Cooper, and then on February 24, 1943, had the same recorded and forwarded by the clerk to Mrs. Stella Jackson Cooper, the life-tenant named in the deed. None of the defendants were present when said will or said deed was executed.
It was further agreed that the deed was written for the grantor by T. J. Purdy, an attorney, who also witnessed it as a notary public, and that the following statement made by Mr. Purdy is true: "On or about May 28, 1942, Mr. J. W. Cooper came to my office to get me to draw a deed for him. I drew the deed and Mr. Cooper signed it in my presence, and in the presence of Mrs. Mable Jones. That is the deed referred to in the plaintiff's petition. I tried to write the deed the way Mr. Cooper said he wanted it. He said that he did not want to give the property to his wife, Mrs. Stella Jackson Cooper, absolutely; but wanted her to have only a life estate in it, and after her death, he wanted the property to go to his folks, and not to her folks. I wrote the deed intending to give effect to Mr. Cooper's wishes. He expressly stated to me that after her death, he wanted the property to go to his brothers and sisters or their representatives, and not to the heirs of Mrs. Cooper." J. W. Cooper was living on the land described in the deed at the time he executed the deed, and at the time of his death.
The judge, upon consideration of the agreed statement of facts, found that the deed was never delivered in contemplation of law, and thereupon entered a decree cancelling the same as prayed by the administrator. The defendants other than Mrs. Stella Jackson Cooper, that is the brothers and sisters, nieces and nephews of the deceased, excepted. Mrs. Cooper, the widow, did not except, but she and the administrator were named in the bill of exceptions as defendants in error.
BELL, Chief Justice.
A deed to land must be in writing, signed by the maker, attested by at least two witnesses, and delivered to the purchaser, or someone for him. Code, § 29-101. Delivery, actual or constructive, must be made during the lifetime of the grantor. Baxter v. Chapman, 147 Ga. 438 ( 94 S.E. 544); Ham v. Preston, 164 Ga. 682 (3) ( 139 S.E. 421).
In Wellborn v. Weaver, 17 Ga. 267 (5) (63 Am. D. 235), it was held that a deed delivered to a third person, as agent of the grantor, to be kept by him and delivered to the grantees after the grantor's death, was not a present deed of the grantor, and death of the grantor revoked the agency, thus preventing effectual delivery.
In the present case, the grantor mailed the deed to his brother, with a letter stating what should be done with it. This letter showed upon its face that the grantor did not intend to make a present delivery to the brother for the use of the grantor's wife or other grantee, but that he intended for the brother to act as his agent to deliver the deed after his death. Several things were to be done, and they were evidently to be done for the grantor, for he stated: "If anything happens to me, you have this paper recorded at once, and turn over to Stella. If living, mark the envelope so you will know what it is, and take care of it." This language clearly shows an intention by the writer to make the brother his agent, rather than to treat him as an agent or trustee for the grantees. This being true, the agency was revoked by death of the grantor, and authority to deliver the deed was thus terminated. Hadaway v. Hadaway, 192 Ga. 265 (2), 270 ( 14 S.E.2d 874); Stinson v. Daniel, 193 Ga. 844 (2) ( 20 S.E.2d 257); Snodgrass v. Snodgrass, 107 Okla. 140 ( 231 P. 237, 52 A.L.R. 1213); 16 Am. Jur. 517, § 143; 26 C. J. S. 247, § 46.
But it is contended that since the grantor left no children, and intended to convey only a life-estate to his wife, the brother to whom the deed was mailed would be one of his "legal heirs," and therefore one of the grantees in remainder. On this hypothesis, it is insisted that the mailing of the deed to this brother constituted delivery to one of the grantees, and made the deed effective. Under the facts of the case, we do not think it necessary to enter upon a construction of the deed, for the purpose of determining the question as to delivery. But see the Code, § 85-504; Milner v. Gay, 145 Ga. 858 (2) ( 90 S.E. 65); Lumpkin v. Patterson, 170 Ga. 94 ( 152 S.E. 448); Lane v. Citizens Southern National Bank, 195 Ga. 828 ( 25 S.E.2d 800); Guess v. Morgan, 196 Ga. 265 ( 26 S.E.2d 424). Even if it might be assumed that the "legal heirs" of the grantor as mentioned in the deed would have included his brothers and sisters, it is still apparent that there was no intention to make a present delivery to or for any of them. In deeds of bargain and sale and in voluntary deeds, the mere manual delivery to the grantee or donee is not sufficient; an intention to surrender dominion must be present. Story v. Brown, 98 Ga. 570, 573 ( 25 S.E. 582); Willingham v. Smith, 151 Ga. 102, 104 ( 106 S.E. 117). Under the instructions given in the letter, the brother was not to retain the deed under any circumstances, but he was to do certain other things and finally to turn the deed over to the designated life-tenant. Hall v. Metropolitan Life Insurance Co., 192 Ga. 805 ( 16 S.E.2d 576); Stinson v. Daniel, supra; Hotaling v. Hotaling, 193 Cal. 368 ( 224 P. 455, 56 A.L.R. 734); 16 Am. Jur. 505-508, §§ 122-126.
In the circumstances, the judge did not err in finding that the deed was never delivered, and decreeing its cancellation.
Judgment affirmed. All the Justices concur.
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