828
FEDERAL REPORTER"
vol. 45.
"T,mHu!e in equity as to parties defendant is that all whose interests will by the decree'sought to be ()btained must be before the court; ani if such persons cannot, be reached by process .. .. .. the bill must be dismissed." , This case is not withinthe to ,this rule.
McCALLA ''IJ. BANE
et al.
(CircUit Oourt, D. O1'e(Jrm. Aprll20, 1891.) ..4-ct ;FElb. 25, 1889 (Sess. Laws, 75,) .entitled "An act to amend sllction 8101 · · · of the' Annotated taws of Oregon;" in' which said section is set out as amended, is not in conflict with either section 20 or 22 of article 4 of the constitution of Oregon, 8l! expounded by the supreme court of the state in State v. Phenline, 16 Or. 107, 17 Pac. Rep. 572. ; 9. lDEM. Said section, as amended, not only,makes an illegitimate child the heir of its but legitimates it, so that it may inberit tbrough its mother, provided the patetlts were "formally married, "-married in form,-and "lived and cohabited as husband and wife, " althOugh such marnage may be void iillaw. 8. DEBDjDll:LlVERY OF. , .:Jiha delivery of a deed by the grantorw.a third person, to be given to the grantee at."llce, or, on the happening of some future event, as his own death, isa good present d'elivery to the grantee, and vests in him the estate of the grantor; but it is otherWise if the grantor reserves to himself any future control over the deed. " -INTEREST :nt SUBJEOT-MATTER OF' SUIT.
L
AJul'lDATORY : A O T . "
....,
,
The plaintiff having conveyed to another the "undivided one-half" of the property ,in this suit before the commencement of the same, .and it appearing that she clairQ:s .as the heir of her father, and that as such heir she could not be entitled to more than one sucb half, she is without interest in'the SUbject-matter of the . suit, and cannot maintain the same.· .
5.: COyglDEUTION INDEED., TlIe eOnlliderationiI). a CllnuQt be or disproved under the grantor,by matter subsequel;lt, as by descent, for the by one, l?urpose Of impairing the effect or operatiQn of the same.. , . 6. CASE IN ';funcniIENT.', ' .· . ," ' Plaintiff itt her bill aIlegM that her father, James R Stephens, ,being old and incapable of transactingbl1siness, was induced by the defendants to convey all his property. tb them, to the exclusion of the plaintiff, his lawful heir, and that Raid deeds were void;i'oj:' wllnt of capacityin,the grantor, and therefore onghtto be set aside, and the plaintijtaamitted t<> her inheritahce. Found, that the plaintiff, years before her father's.(leath;aud continuously thereto, h'ad so conducted herself as to incur his and that such conveyances were made by him after long and careful consideration, free from the influence, persuasion, or sugg-estion of any onet for the,purpose of bestowing his ,property on the defendants, his relatives ana friends, :for reasons satisfactory to himself, and commendable generally, and to exclude'the,plaihtiff from any benefit thereof; that at the time of signing said deedS, Stephens was' both mentally and Ilhyslcally capable of executing the same, and fully comprehended the nature and effect thereof, the :det,alls of which he had planned in his mind longbe;i'bre, and then and there duly delivered the same to a third person, for the grantees therein named. (SyllabUS by the Oourt.)
John Gearin, and William B. Gilbert, for plain tiff. James, K.; Kelly,Ernmet B. Willia'l1l8" a.Q.d Paul R. Deady, for defendants. :!
In Equity. . ,
W. &ott
M'CAr LA V. BANE.
820
DEADY, J' This suit was commenced on April 12, 1889, by beth McCalla, a citizen of the state of California, against the defendants Mary A. Bane, Himry Jones, Franklin T. Dick, C. H. Raffety, Rosetta Jones, James :McAyeal, Harriet Bennett, and school-district No. 21, in Multnomah who are citizens of Oregon. On June 13th an amended bill was filed, making Samuel T. Stephens, J. W. Sexton, and also of Oregon, defendants. T,his suit was brought to have certain conveyances of real property, made by the father of the plaintiff, James B. Stephens, in his last ill· ness, and void on account of the alleged incapacity of the grantor to execute the Same, and for want of sufficient delivery. .' In the bill it is alleged that the plaintiff is the only heir of her father; that on Mllrch 16, 1&89, he being 83 years of age, and weak physically and mentally, and thereby rendered incompetent to transact business, the defendants, thepand before intending and contriving to deprive the the property I)f. her father, procured and forced him to sign a number of deeds ponveying all the real property of the deceased, al,; leged to be worth $250,000, to them in severalty; that the defendants J. W. Sexton and India Simmons, although not named in said conveyin said property. ances, claim an On July 1st the defendants Henry Jones, Franklin T. Dick, C. H. Raffety, Rosetta J ones, James McAyeal, Harriet Bennett, and schoo1district No. 21, answered the bill jointly, and on August 5th Samuel aI)swered, and Mary A. Bane, on the 6th of the same month, T, separately. By their answers these defendants admIt that the plaintiff is the daughter of Stephens, but deny that she is his only heir, and lege, that India Rolfe, now deceased,. was his daughter, and that the defendants Rosetta Jones and J. W. Sexton are her children, and that India Simmons is her granddaughter, being the only child of her ter Awanda.Simmons, now deceased, and that, as the representatives of said India Rolfe, they' are entitled collectively, under. the laws of the state of Or.egoll, to one-half of the property, of whieh Stephens died seised . They al,soadmit the conveyance of the real property of Stephens, ,as alleged ill',the bill, on March 14 and 20, 1889, but deny speeificallyall the allegations thereof concerning the incapacity of the grantor, lege that the deeds executed on March 14th were by the tor to the grantees in person, and those on March 20th were delivered to John T. Ste",art, under the advice of his counsel, then present,' as and for therein named, to whom the latter afterwards gave them; that the rior neither of them, did nothing to influence the ii<:tionofStephens in this respect, and did not kn,ow to whom he was going to cqpvey the property until the time of the execution of the conyeya,Qcesj)n!i that hil/,miOd was clear and comprehensive up to the last Inomentof' his life. . Qn July 13th the defendants J. W. Sexton and India Simmons filed what is denori:linated a in which they allege of the conveyances to the.other defen,dants for the causes stated in the original bill, and aver that Stephens died intestate, and I , ,'. '. ;" I \. I, .', , ' . . .' ·. " . , . . ·
830
1'EDEI'"ALREPOnTER, vol. 45.
,with the 'defei1dan'tRMettli Jones, are in right of thl:j'motber. 9f aR<lgrandmo¢.i:Jr. of. thelll.tter, to'an uridividedone-balf:ofhis estate. ',L ", ' , ' , . ' w The other defenq.antsln'the bill answbred the cross-bill, adthat ;together ,with. the defendimt .Tones, are heirso'fJames B.. Stephlln$, as theteinillleged, and that he l:>Ut alJege that' conveyedall'Jlis property to the de" :in the crosa:hlll except' )j;J'izaheth McC{illa, and that said confree .and while he ,was of and, and, vered by hIm lU person to some of for, the others. ,''thean,swet of the. plaintiff to' the cross-l?il1 admits the allegations thereiiJ;coll'cerding the execution'and delivery of the deeds, but denies tbatJ.W. Sliliton, India Simmons, or Rosetta Jottesare' heirs of James :B;,Stkphens, and 'alleges that ()heEdward S. Angeline Belshea: were duly marrie4,in the state Of Illinois in the year 1848 j that iIi the year 185Q',sitid ,Sexton deserted. h.is wife, and carne to Oregon, where he lived ,\mtil his death, in the yel1r1877; that India Stephens was the daughter 'of James B: Stephens and' sister of the J. W. Jones, ,and Anianda Simmons are the. illegitimate issue who were never marriedj that saN died in, 1,884, ,leaving prily child, India Simlllons; and that said' 'Edward S.',S,eitqo and Angelihe Belshee were never divorced. Replications filed. to the several, answers,and much testiand, con, before lin examiner of this' court. On the nearing, the bitlof the pll1in'tiff was dismissed as to Samuel T. Stephens and Harriet on the statement of counsel that the plaintiff would not further contest the validity of the deedS: made on March 14th. ; , '" , After careful consideration of the evidence I find the material facts of the case to be follows: . 1. In 1844,'James ]3' Stephens and Elizabeth, his ,'\Vife, settled on a tract of the public lands;containi6g 640 acres, which, they afterwards acquired underthe donation law, lyihg on the east side of the Wallamet river, opp6sit,e Portland, on which the town of East Portlahd has since been laid q\1t and built up, and resided there continuously during the rest of their lives. , ' , 2. Thechfldren of .people were a son, Jam,es:8.; long since dead, the who' fl'rst married' one arid after his death was iliarried i.Q. 1851, hi her father's house,by It minister of the Methodist Church,':':'-the Rev',James H. Wilbur,-to one Edward S. Sexton, irith'whom she lifterwaras lived and coha'bited as husband and wife in 'ch'egon,' until' the death of the 'latter in' 1870,. after which sbe married one.Rolfe,and died before her father, in' 1878. , ' 8. Said full name was 'Edward married in Fulton 'county, Ill., in JaQuary, '1843, to Angeline Belshee, aM lived there,'with her until 1850, \"hen, he ,came to Oregon, and ried to India .Alderman, :as abovestfl.ted,' 'without being then or at any
w,ill
as
831 time divorced from said Angeline.·., The iBBue of this marriage were the defendants Rosetta Jones and J. SextoJ;l and Amanda Sim1nons, who died in 1884, leaving an, only child, tbe defendant Simmons, which children were and as a matter of. fact, illegitimate. 4. The plaintiff,Elizabeth il;l near 150 years and at the commencement of this suit was a citizeIi of California. Some time prior to 1870 she was married to 0lleDr. A. M. whom she bore three children, and from whom she was subsequent}y separated,and After leading a disreputable life both before and after the divorce, and acquiring the habit of using strong drink and opium, she waamarried some years since..toper present husband, one George who appears t9 companion for her. .. B. Stephens was born in West Virginia in .1806. He was a cooper by: trade, and a person oflimited education.. He had a strong mindaud body, in the ways of th,e world in the common of life, was a .. 8 memory, and was very .persistent of purpose qpinion. Whep. the. pla5,ntHf.was married to Loryea hegavf. for ber own use and bap-. e&t, three·blocksof ground in East a/:>out $50,000. About the same time he engaged in the banking business with her husballd, brought to thevergt}of banltrQptcy, and compelledqim tQdispose of his property to raise 8 large sum of money to leflll.illl·90mparativelypoor. A:few years bef9re pay his his death he succeeded in having this disposition of property declared liL 1X),0r,tg!lge,and'inl'aising the money to satisfy Fbe same, and then,by the sale of lots. arid blocks, indischargiugtpe indebtedness altogether, which left lliDJ. the owner of the covered by the deeds nowhere. drawn in question, and a parcel of thedonat\on, now known as the "Clintol) and McCoy Tract'" whicp. he sold about a year before bis death for $35,000. This sale was Io,ade for the purpose of distributing tbeproceedsaDlongbis relatives and friends. whom he wished to remember' and serve. 6. AboutthEl yea;r 1873, while the plaintiff was living separate from !.o;ryea, she took a young man into her house, with whom she was understood to be living in a.state of adul!ery;. On this account, herfather went to her house, and on his knees beseeched her to change her life an4 bebave'herselfj to come home and livEl with him and her mother, where sbe wanHor anything.. In response, the plaintiff spit at bim, andsftid: "It's none of your d......d business what I do.. I will do as IG-rrddrl please." Thereupon, her. father up and went away, saying: ,"'1 hope you will see the day when you will.have to beg for· living." He never spoke .to her again, and apparently then and there formed the purposEl' to 'Ypich he ever afterwards adhered, of disinheritiJlg .her. ; . . . , . . . ., 7. OpMay: 30, 1878, his wife each made a will,desig:Jl8,ting't4e: his or ber devisee, plaintiff Off with one dollar. , In 1887, Eljzabeth Stephens died, her husband .OElle4 . w;ilJ..by tearing his name from it. Ther;eafter, during his
832
FEDERALREPbRTER,
Ulness,some friends and neighbOrs; knowing ,that Lizzy, as the plaintiff Wascalled, was it poor invalidaIid castaway living in Southern California, etide'a:vored to have him make some'provision'for her, but he could not be moved from his determination, and referred bitterly to her treatment of him, adding that "money wbuld do her no gooa;-it :might as well be thrown in the Wallamet:" . ., 8. On March 22, 1889,' .Tames B; Stephens died atllis home in Ste, phen's addition to he had lived for many years,'-orold' age, by chronic bronchitis. For some months before his dea.th he was confined to his house, and much of that time to his room ana bed. During this time he was conscious that his end was drawing nigh, and for some weeks before his decease he was revolving in his' mind the disposition ofhis remaining property among his friends and relatives, to wbom he felt tinder obligations, or thought worthy of his bounty, or desireq to serve. This property consisted of a section of land %. Washington county, known as the "Sexton Donation;" a place in addition aforesaid', containing about 19 acres, called the "Homestead," on which he Was li.ving;block 191 iii East Portland; and it poriitin oftha proceeds of the sale of the Clinton and McOoy tract afore· said. " . 9. About two:monthsbefore his death, Stephens directed the'detendant Henry Jones to survey and plat the' homestead tract, dividing it into six unequal. parts, one,Of them to include his house, whioh was done to " ' his Satisfaction! 10. On March 14, 1'889, Stephens ,conveyed theSexton donation, valqed iIi 1881, ina sniffor partition, at $3,500, to the defendant Henry J'6nes;ascompensation,for his services as the faithful manager 'of his affairs fMilhe pastseYeral years, and. to ,the day of his death, in tit;mtothesum of $1,542:50 he had aHeady paid him on the same' aC:count, On: the same day he convEiyed, as a gift, block 191 aforesaid, theretofore held for sale at $2,000, to his niece Mrs. Harriet Bennett; and in like manner the Wheeler farm of 160 acres to 'his nephew, Sam'uel T.'Stephens.· This'farm issitriated on the Sandy;. a few miles east of Portland, and was,. purchased' by the· defendant BenrY'Jones a short .time l)efore, under the dir'ectionofStephens, for the benefit of said Samuel, ith/cost of$4,OOO> 11. On March 16th Stephens directed the defendant Henry Jones to have the notary, Mr. John T. Stewart, prepare sixueeds for the six parcels of land into which he had platted the homestead as aforesaid, num'bering them from J toG, consecutively, as on the plat, and leaving a blank for the name of the grantee in each, which Was done, and the deeds examined and approved on the same day 12. About 1100n of March 20th Stephens sent for the defendant Henry Jones, gave him the name of the grantee to be inserted in ell.Ch of said six deeds, when the latter made a memorandum of the same as Bane; No.2, Rosetta Jones; No. 3, C. B. and follows: "No. 1, Dave Raffety; No.4, James McAyeal; No.5, school-district No. 21; No.6, FrankT,Dick.'" 'Thereupon he sent Jones for.theuotaryj Mr.
M'CALLA tl. BANE.
833
Stewart, and his attorney, Mr. RichardWiUiams, saying he wanted them "to come quick, and finish these· deeds." Jones went to the notary's office, and gave him the names of the grantees, which were written in the deeds by the latter. Then, after finding Mr. Williams, the three went to Stephens' house, where the deeds were signed and acknowledged by the latter. The deeds and acknowledgments, although in fact exe,. cuted and taken on March 20th, are in fact dated on March 16th, for the following and no other reasOli: When the notary wrote them on the latter date he supposed the deeds were to be executed at once, and so he dated them as he did; and when they came to be executed it does Dot seem to have been thought w()rth while to change the dates. 13. The execution and delivery of the ·deeds took place as follows: Stephens raised up in bed without assistance; a book was placed on his knees; the deed was laid on it before him; he took a pen and wrote his name. legibly,and with apparently as little difficulty or trepidation as in the case of his signatures to the deeds executed on March 14th and to the leases written in 1884'. The signatures were then attested by the notary and attorney , when Stephens said to Stewart, Henry and Rosetta Jones and Mary Bane being still present: "You keep these deeds, and after I pass away you give them to the parties named in the deeds. I don't want them recorded. yet. ,. Henry and Rosetta Jones and Mary Bane then left the room, when Stephens, after resting a little, said to Mr. Williams: "How should I do with these deeds to make them good? I want the parties to have them." Williams replied: "You can deliver the deeds to Stewart for the parties, if you want to." Stephens then said to Stewart, who had the deeds for the purpose of affixing his seal to the certificates of acknowledgment: "You take the deeds that way, for the them recorded until parties named in them. Iwould rather not 1 am dead." Stewart took the deeds, as requested. and kept them until the grantor's death, when he delivered them to the grantees as directed. Then, at the suggestion of Stephens, a deed was prepared, conveying to Henry Jones any "odds and ends of land," as he said in his donation, not theretofore disposed of or conveyed to any one, which was then and there executed by him, and delivered to Jones. Then Stephens suggested that parcels of this property were under lease to third persons; that the leases were in his safe, and each ought to be assigned to. the grantee, of such parcel, which was done.. , In all this business Stephens acted solely with a view of bestowing his property upon his friends and r.elatives, for reasons satisfactory to himself, and generally commendable, and of excluding the plaintiff from any benefit thereof. 15. The consideration named in these conveyances was inserted under the direction of Stephens, without consultation with anyone, as representing, in his opinion, the value of the land thereby conveyed; and their execution on March 20,1889, was the final result of a deliberate and well-considered purpose on his part to dispose of his property in his life-time, by deed, and not by will, to the persons therein' named, and to exclude his daughter, the plaintiff, as well as J.W. Sexton and India Simmons, from any benefit of the BaIne; that at tbetime of the axev.45F.no.12-53
FEDERAL ,REPORTER,
<mtionithereof,and up to the:tii6nient of his delLththlliJl1'1indwas clear aildrcompNlbensive, and he fully understood the nature and effect of such conveytmces;andthatthe same ,were planned and executed by Stephens, without the influence or persuasion of any one, and without knowledge on the part of anyone but himself, up to the time of treir execution, who were to be named as the grantees therein. 16. Rosetta Jones is It granddaughter of Stephens, and for years before his death was'very attentive and kh}d to him and his wife. "James :M:cAyeal is a thrifty, industrious man. ,He married Stephens' favoritegrandaughter, Elizabeth "Jane, the daughter of India Sexton, who had been brought up in his family , and died in 1882. .Since then he married a favorite grandniecaiof Stephens. .' Franklin T. Dick is a nephew' rofStephens, being his sister's child, and a person.in whom he:evidently.tooksome pride, as he was postmaster at: Pendleton, and a member of the legislature from Umatilla county. Mary Bane is a niece of his wife, and served him faithfully as nurse and housekeeper for two years before his death. Charles H. and David Raffety are old and valued friends and neighbors, who had been his family physicians, and indorsed his paper for a large amount; when he was in financial trouble. The voters of school-district 21 had lately named their school for him, and he was pleased with the attention; in fact the gift was only a diverSimlof one that he had lung contemplated making to the town of East Portland. J. W. Sexton is a grandson of. Stephens, and in February, 1888, he gave him two lots and. a house valued at $1,500, with the unJerstanding that he should keep the property for a home; but instead of 'hat he mortgaged it to raise money to go into the saloon· business, and lost it. This offended, Stephena, and convinced him that it was no use to do anything for him, anqso he said he never would try to help him again. India Simmons is the great-granddaughter of Stephens. In the spring of 1888 he wanted her to go to school at St. Helen's Hall, and made arrangements to maintain her there fora regular course of study. She refused to accept the offer, and married Simmons. This disgusted Stephens, and he said he never intended to do anything more for her; and17. On April 9, 1889, the plaintiff and her husband, by their deed duly executed, conveyed to W. T. Williams and H. H. Boyce, for a valuable consideration, "the undivided one-half part" of all the propperty, real or personal, belonging to the estate of the late James B. Stephens, of which he died seised, possessed, or entitled. , And as conclusions oflaw from these facts I find: 1. That the seven deeds by James B. Stephens on March 20, 1889, were duly executed and delivered to the several grantees therein named; as also the' one to Henry Jones . on March 14, 1889, for the Sexton donation. 2. That the children of India Sexton are legitimate by virtue of the act of the legislative ,asSembly .of Oregon,entitled "An act to amend seetion 3101 of title 3 ofchapter 23 of the Annotated Laws,upassed Febru-
}.I·CALLA 'IT.13ANE.
835
UrY
25; 1889, (Sess. Laws, 75,) of Oregon, which provides that said section "shall be and hereby is amended as follows:" "Sec. 3101. An illegitimate child shall be considered the heir of its mother, and shall inheritor receive her property, teal or pel'sonal, in whole or in part, as the case maybe, in like manner as if said child had been born in lawfnl wedlock; but such child shall not be entitled to inherit or receive,as representing his mother, any property, real or personal, of the kindred, either lineal of such mother,: provided, that when the parents of sllch child have formally married, and lived and cohabited as husband and wife, such child shall not be regarded as illegitimate, within the meKnlDg of this aet,although such formal marriage: shall be adjudged void." 3. That by the conveya.nce of April 9th to Williams and Boyce the plaintiff divested herself of all interest in the estate of her father to WhICh she could be entitled as heir, and therefore cannot maintain a suit, or be heard to question the validity of the conveyances to the defpndants. I do not propose to discuss the evidence bearing upon the foregoing conclusions of fact but very briefly. In the first place, all tht;l allegations of the bill and cross-bill affecting the validity of these deeds are explicitly denied in the Sworn answers of the defendants, and the burden of proof is upon the plaintiff to overcome the same and establish the contrary. ' The plaintiff not having expressly waived, in her bill, the oath of the defendants to their answer, they had to be given under oath, and are evidence in their behalf. Eq. Rule, 41j Conley v. Nailor, 118 U. S. 134, 6 Sup. Ct. Rep. lOOt. The evidence as to the capacity of Stephens to transact the business he did on March 20th, namely, the execution of the deeus, is conflicting, but the great weight of it, both as to credibility and pertinency, is in support .of the conclusion stated. Much of that introduced by the plaintiff is the merest gossip and tittle-tattle, and includes $tatements on the subject attributed to some ofthe defendants, that are riot only improbable under the circumstances, but which the parties unequivocally deny. John Collins and Samuel T. Stephens are the principal witnesses for tht' plaintiff on this point. In my judgment neither of them are entitled to credit. The testimony of both is very improbable, and in parts manifestly false. The first one does not appear to be a person of any standing or character, but the contrary, and is evidently disappointed that he was not remembered in some way by the deceased. The second one, in his answer to the bill and cross-bill, denied under oath the allegations therein, impugning' the validity of the deeds, and averred that at the time of the execution of the same, and up to the very moment of his dt'ath j Stephens "was in possession of all his faculties, and fully comprehended the meaning and terms of any transaction he undertook to perform, and directed and managed everything that was done by him concerning the matters complained of in said bill." Afterwards, and on November 29, 1889, he testified for the plaintiff, in what is called "rebuttal," just the reverse of what he did in his answers, saying, among other things, that Stephens was not physically capable of signing his name on March 20th, when, as is now praCtically admitted and proven beyond a doubt, he did then sign his name to the deedS in ques-
836
FEDERAL REPORTER,
tion, as legibly as usual, and without aid or inconvenience. This witness is quite positive, however, that on March 14th, when the conveyance to himself was executed, Stephens was fully competent, both mentally and physically, to do what he did, but became incompetent immediately thereafter. And finally, in consideration of this attempt to serve the plaintiff, as it appears to me, the bill as against him was'dismissed at the hearing. Severar physicians were called by the plaintiff, and testified as experts upon the hypothesis stated to them, .that a person in Stephens' condition was not capable of transacting important business. But the case given them. by counsel for the plaintiff is as different from the real Stephens case ,as day is from night. The fact is, as the evidence plainly shows, he was): under the circumstances, as capable of transacting the business he did on March 20th-the execution of these deeds-as anyone of the medical experts. For it must be remembered that it is one thing to have executed these deeds as the 'final act of a long and well-considered purpose for the disposition of 19 acres of land, on which he had lived for a quarter of a century, and quite another to have considered and acted upon an important business proposition concerning a matter with which he was not familiar, and which was then for the first time presented to him. The business of disposing of this property among his relatives and friends. was thought out and arranged in the main in the mind of Stephens long before the deeds were executed, and all that remained to be done ,on March 20th was the simple act of signing the same, which, in my judgment, he was fully capable of doing up to the last moment of his life. Itis 'hardly necessary to say anything in support of the finding that the failure to include the plaintiff in the disposition of his property was not the result of any adverse impression made on Stephens by any of these defendants or any,one else; for if there is anyone fact established in this case beyond aperadventure, it is that for at least 16 years before his death he n13v:er wavered in his purp6se to disinherit her. This intention was formed on t!'lll.t, to him memorable day, when,in answer to his entreaties on his bended knees, to come home and live'decently , she drove him from her door with a scorn, and contumely unworthy of her sex, let alone a (laughter. The facts concerning the execution and delivery of the deeds are stated in the finding. There is no conflict in the evidence on this point. Mr. Richard Williams, a distinguished member of this bar, who was present as Stephens' legal adviser,made a detailed memorandum on the next day of transpired onthe occasion, which was ,put in evidence as a part of his testimony. His statement is corroborated by that of every person who was present, including the notary, Mr. Stewart, a disinterested witness, who is the mayor of East Portland, and long engaged in respectable business here. And now as to the conclusions of law; and, first, as to the delivery of the deeds.
M'CALLA fI, BANlIl,
837
Delivery is essential to the due execution of a deed. It takes effect only from delivery. The deed may be delivered to the party himself. It may be delivered to a stranger as an escrow, to be kept by him until certain conditions are performed, and then to be given to the grantee. Until the condition is performed the property does not pass, but remains with the grantor; and it is ordinarily considered as the deed of the grantorfrom the time ofthe second delivery. A deed may also bedelivered to a third person as a deed, to be delivered to the grantee on the happening of some future event. In such case the writing is a valid deed from the beginning, and the third person is a trustee for the grantee. Shep. Touch. 55; 4 Kent, Comm. 454; Sottve1'bye v. Arden, 1 Johns. Ch. 240; Wheelwright v. .Wheelwright, 2 Mass. 447; Hatch v. Hatch, 9 Mass. 307; Blight v. Schenck, 10 Pa. St. 285; Steele v. Lowry, 4 Ohio, 72; Shirley v. Ayres, 14 Ohio, 307 (45 Amer. Dec. 546;) Hoffman v. Mackall, 5 Ohio St. 124; Ohurch v. Gilman, 15 Wend. 656; Fosterv. Maniifield, 3 Metc. (Mass.) 412; O'Kelly v. O'Kelly,8 Mete. (Mass.) 439; 3 Washb. Real Prop. (5th Ed.) 306; 5 Amer. & Eng. Enc. Law, 448. Of course the delivery of the deed to the third person for the grantee must, as contended by counsel for the plaintiff, be absolute. No future control of the instrument must be reserved to the grantor. As was said in Ohurch v. Gilman, supra, whether the grantor divests himself of his estate by the transaction depends on the delivery of the deed. "If the delivery is absolutely as his, the grantor's deed to the stranger. for the use of the grantee, the delivery is good; but if it be delivered to the stranger, subject to the future control of the grantor, no estate passes." Now, these deeds were delivered to the notary for the benefit of the grantees, four of whom were absent, to be handed them on the death of the grantor. He said without qualification that he wanted the grantees to. have th(il deeds,-the benefit of them,-and to make sure of it he asked his sel how it could be done. He answered correctly: "You can deliver them to Stewart for the parties,"-when the grantor replied: "Stewart·, you take the deeds that way for the parties named in them. 1 would rather not have them recorded until I am dead." The notary took the deeds "in that way" for the grantees, as their agent, and gave them to the parties as directed. From that moment the power of the grantor over the deeds was gone. He was well assured that he would soon pass away. He had, after due deliberation, just succeeded, in the exerCise of his undou bted right, in disposing of the remainder of his property to his own satisfaction. He made no reserve, and had none to make, except the harmless wish that the transaction should not be blazoned to the public by the deeds being put on record before his death. If ever there was an absolute delivery of a deed to a third person for the use of the grantee therein this was one. Indeed, the delivery was good as an escrow, as well as the personal deed of the grantor, and took effect as his deed on his death. 5 Amer. & Eng. Enc. Law, 451. Second. The legitimacy of the children of India Sexton.
838
vol. -15.
India Alderman, Stephens, was formally married-married in form-to Edwa:rd S. Sexton, :and thereafter they two" lived and. cohabitedas husband and wife" for many years, and until Sexton died. By this act of 1889 it is declared that the children of this marriage" shall not be regarded as illegitimate within the meaning" of the same. What significance ought to be given to the phrase "within the meaning of this act" it is not necessary now. to consider. Without it the children are apparently made legitimate to all intents and purposes, and might inherit from the father as well as the· mother, and through both of them. It is. sufficient for the purposes of this case to hold. that children so born, though not in lawful wedlock, are by the act made legitimate, at least as to the mother; and therefore they and their may inherit through her as her representatives. It follows that the children and grandchildren of India are lawful heirs, as her representatives, of James B. Stephens. But it is contended by counsel for the plaintiff that this act is. unconstitutional and v,oid because the "subject" of it is not expressed in the title, as required by section 20 of article 4 of the constitution of the state; and the Case of .The Borrowdale, 39 Fed. Rep. 37.6, decided by me in the United States district court, is cited in that behalf. Without stopping to consider how far that case supportA this contention, it is sufficient to say that in State v. Phenline, 16)01'. 107,17 Pac. Rep. 572, the supreme court of the state has held that an act amendatory of a section of an act does not require a ne\\I' titlej. that the title of the original act applies to the amended one and expresses the subject of it, "unless there has been a clear departure and complete change of substance from the original." The amendment in this case is contained in the proviso to the end of the section, and is clearly on the same subject as the original,-the descent and distribution of property in the case of children born out of lawful wedlock. It qualifies its operation in the case of such children whose parents were "formally" married and lived together as husband and wife. The. court also said in State v. Phenline that, construing said section 20 with section 22 of the' same article, regulating the amendment of statutes, "it is sufficient, in amending a section of an existing law, to designate such amendment as the "subject of the amendatory act." This construction of the constitution of the state is binding on this court, and, tried by it, this act, in my judgment, is clearly valid. The policy and justice of it no one will dispute, and its operation in this and like cases fully justifies its enactment. Third. The effect of the conveyance by the plaintiff on April 9th to Williams and Boyce. The conclusions already reached show that the plaintiff never had any interest in the property covered by these deeds, and that her bill must be dismissed on that account.' But if the fact were otherwise, and these deeds were void, by this conveyance she has divested herself of all interest in the property, and therefore cannot maintain this suit. When she commenced her suit she had
M'CALI.A V. DAl'\E.
839
no interest in the subject-matter. Argument cannot make this matter any plainer than the language of her deed. It' conveys "the undivided one-half" of the property, which is all she was entitled to, if her father had died without making any disposition of the same. The conveyance was evidently made on the supposition that she was the only heir, and succeeded her father such. But on investigation it turns out that the children of India are legitimate for the purpose of claiming through her the interest in her father's property she would have been entitled to if she had survived him. This is one-half, leaving the other undivided half to the 1Jlaintiff, which she appears to have disposed of before the commencement of this suit. An attempt was made, after the case was submitted, to cure this misin which the parties to this deed take by theintrodtlction of a undertake to limit the effect of the language used in it by declaring thatthe grantor only thereby intended to convey, and the grantees only expected to receive, an undivided one-half of the plaintiff's interest in the property, whatever that might be. But a deed cannot be limited in its operation, contrary to its plain language, ill that way. The grantees in the deed of April 9th may reconvey to the plaintiff undivided onehalf of what she attempted to convey to them; but it is impossible, for the purpose of maintaining this suit, to reinvest her with any supposed interest in this property on the day it was commenced. Some question has been made in the progress of the argument in this case about the consideration or want of consideration for the conveyances of March 20th. In all of them except those of the school-district and the Raffetys, the grantees, in addition to services rendered to Stephens, are shown to be his relatives, except McAyeal, who was married to his granddaughter, and is now the husband of his grandniece. The Raffetys, besides being old friends and neighbors, had rendered him substantial aid in his financial trouble without consideration. However, these deeds are good as vohmtary conveyances the plaintiff or others claiming under the grantor by matter subsequent as descent. They are estopped to deny or contradict the consideration mentioned in them for the purpose of destroying their effect or operation. S Washb. Real Prop. (5th Ed.) 400; 4 Kent, Comm. 510; Grout v. Townsend, 2 Hill, 554. , On the grounds stated, the bill must be dismissed, and it is so 'ordered.
840
'JUNKER 'lJ. FOBES (Circuit Oourt, S. D. Alabama.
et al. 1 February 11,1891.)
The character of a suit is determined by the contents of the declaration or com· plaint, and not by the form of action adopted by the pleader. 9. :Suqa-Ex CON1:RAC1:U OR EX DELIC1;O. If the cause of action as stated in the declaration or complaint arises from a 'breach of promise, the action is ex cantractu; if from a breach of duty grOWing out of the contract, it is ex delicto and case. ' " 8. SAME. A declaration or complaint by a government contractor against his subcontractor for dredging, alleging damages to plaintiff's channel revetment, caused by ,defend· not dumping the excavated material against this revetment, as agreed, is a SUit for breach of contract, and not on the case.
PLE4DING-CHARAC1:ER OF tlUI1:.
'At Law. Demurrer to declaration. Hannis Taylor, for plaintiff. Faith & Ervin, for defendants. TOULMIN, J., The substance of the complaint in this case is that the plaintiff. having a contract with the United States government to do certaili dredging and to build a revetment for the improvement of a certain river and pass in the state of Louisiana, entered into an agreement with the defendants that they should dredge the "cut" at the junction of the river and pass as the government might designate or direct, and that the defendants would commence as soon as possible after date of the agreement, and were to be paid per cubic yard of the material taken olitand dumped as the engineer iIi charge might direct, the plaintiff agreeing to build the revetment and to keep ahead of the dredge, so as not unnecessarily to, detain the dredge-boats. And the complaint avers that the plaintiff built the revetment provided for in his contract, and expended a large sum of money in t.he of it, relying on the defendantsto dredge said "cut," and to dump or deposit against the revetment the material taken from said "cut," as the engineer should direct; it being provided in the contract between the plaintiff and the United States (as defendants well knew) that the material excavated from said cut should be thrown or dumped outside of and against said revetment, to protect it against storms or injury and destruction by reason of t.he water beating against it, all of which the defendants failed to do, and the plaintiff claims a large sum of money as damages sutTered by him because of defendants' conduct in failing to perform their said contract to dredge said "cut," and dump or deposit the material taken therefrom against said revetment. The complaint avers that, although defendants undertook to provide good and sufficient appliances and skill for the execution of the contract, and to commence work with all possible dispatch, yet they delayed for some time to commence work, and then failed to perform their said contract. And the complaint further avers 1 Reported
by Feter J. Hamilton, Esq., of the Mobile bar.
