Walker v. Crews, 73 Ala. 412 (Ala.)

STONE, J.

— Gifts inter vivos, to become valid transfers of rights of property, must be completely executed, leaving nothing to be done to perfect the gift. If any thing remains to be done, then the transaction is a mere executory agreement to give, and the title does not pass. No action can be maintained in any court, founded on such agreement to give. And there must be a delivery — a transfer of the dominion from the donor to the donee. — 2 Brick. Dig. 40, §§2, 4, 5 ; 2 Kent’s Com. m. p. 438; 3 Wait’s Ac. & Def. 483-9. The title to personal property given by deed' is transferred by a delivery of the deed, without a delivery of the property. When the deed is delivered, the gift is irrevocable, and the subsequent possession of the donor does not impair its validity. — 2 Brick. Dig. 43, § 50. To the foregoing extent the authorities all agree — See Lee v. Luther, 3 Woodb. & M. 519; Starr v. Starr, 9 Ohio St. 74; 3 Wait’s Ac. & Def. 488 et seq. But, the manner of the delivery, and what it takes to constitute it, depend somewhat on the nature of the property. What is required is, that there shall be a clear surrender of the right and of the dominion, in contradistinction to a promise to surrender. If there be a reservation of the use or enjoyment for life, or any shorter time, this is not a valid executed gift inter vivps. — Pitts v. Mangum, 2 Bailey (S. C.) 588; Stallings v. Finch, 25. Ala. 518; Shaw v. White, 28 Ala. 637; Ragsdale v. Norwood, 38 Ala. 21.

We have above stated the general rules. In Hillebrant v. Brewer, a father procured a cattle-brand to be recorded in the name of his child, and branded certain cattle with the brand so 'recorded, with the expressed object of making a gift of the cattle to the child. Held that this was such parting with' the dominion as to consummate the gift. — 6 Tex,. 45. See also McNulty v. Cooper, 3 Gill & J. 214. In Taylor v. Taylor, 12 N. Y. (5 Hun) 115, it was decided that actual manual delivery of the thing .is not necessary to the consummation of a gift. A delivery to a third person, as trustee or bailee of the

donee, is sufficient to pass the title; and the donor may, by an apt declaration to that'effect, convert himself into a.trustee for the donee. Richardson v. Richardson, 3 L. R. Eq. Cases, 686, is to the same effect, but a stronger case. Morgan v. Malleson, 10, L. R. Eq. Ca. 475 — decided in 1870 — was as follows : John Saunders executed a writing in the following form : “I hereby give and make over to Dr. Morris an India bond No. D., 506, value 1000£, as some token for all his very kind attention to me during illness. Witness my hand this 1st day of August, 1868. (Signed) John Saunders.” This paper was attested by two witnesses, and was delivered- to Dr. Morris, but the bond, which was transferable by delivery, remained in the possession of Saunders. There was no consideration for the transfer. The question arose whether this was an executed gift. The court, Lord Romilly, M. R., said : “ I am of opinion that the paper-writing signed by Saunders is equivalent to a declaration of trust in favor of Dr. Morris and he ruled accordingly. Minor v. Rogers, 40 Conn. 512, (S. C. 16 Arner. Rep. 69) is a very strong authority, upholding such declaration of trust, as a valid, irrevocable gift of the property.

' As we have intimated above, an executed gift, consummated by delivery, or its equivalent, vests a title in the donee, which will maintain or defeat an action in any court having jurisdiction to try the cause. If, however, there remain anything to be done to perfect the gift, or if the donor reserve an interest, or postpone the time of actual enjoyment by the donee, then the title does not pass, and the pretended donee can obtain no relief, in any court. — Kinnebrew v. Kinnebrew, 35 Ala. 628, and authorities cited ; Connor v. Trawick, 37 Ala. 289; Perry on Trusts, §§ 96-7-8. If there be a. trust declared and consummated, it will be enforced to the same extent, and on the same principles, as if the contract rested on a valuable consideration. — Morgan v. Malleson, supra; 2 Sto. Eq. Jur. § 973 ; and the numerous authorities on the briefs of counsel.

It is contended for appellee that the gift in the present case is executory, and that the decree of the chancellor must be affinned on the authority of Borum v. King, 37 Ala. 606. So far as the note of $475 on Wm. B. Borum, mentioned in that case, is concerned, it is difficult'to draw -a distinction between the provisions of the two deeds, which can benefit the claimant in this case. If there be a difference, it is in favor of the grandchild Borum under the deed of Mr. King. That deed contains words'of present, absolute gift and conveyance, with a superadded provision, appointing the donor’s son, Harvey King, his (donor’s) special agent, and gpardian of his said grandchild (donee), to manage and control the before mentioned

sum of money to the best advaiitage of said grandson; and authorized the said Ilarvey, if he thought proper, to expend the interest in clothing and educating the grandson. There was a disposition of the money over, in the event the grandchild died without lawful issue. .This court ruled that, inasmuch as the legal title to the note — the right to sue in the grantee's name — was not conveyed, the gift was not perfected, and the donee could not maintain an action for its recovery.

It was said in Connor v. Trawick, 37 Ala. 289, that a gift by deed delivered is an executed gift, without the actual delivery of the thing given. The delivery of the deed is the equivalent of the manual delivery of the subject of the gift. Such is the acknowledged rule. — 3 Wait’s Ác. & Def. 499. The gift in Borum v. King was by deed delivered, the symbol and equivalent of the actual delivery of the note. Under the ruling in that case, the title and right to the note would not have passed, if the note itself had been delivered, without indorsement, to Borum, the donee. We apprehend this lays down too technical a rule. The true sense of the principle is, that dominion over the thing shall be parted with, and not that ^ the technical right to maintain an action in the name of the * donee shall be conferred. What will amount to delivery, sod as to perfect a gift, is not always one and the same thing. Much depends on the quality and condition of the thing given. The delivery should be as complete as the circumstances will reasonably permit; nothing more. — See Hillebrant v. Brewer, 6 Tex. 45; Marsh v. Fuller, 18 N. H. 360; Cooper v. Burr, 45 Barb. 9; Penfield v. Thayer, 2 E. D. Smith, 305; Allerton v. Lang, 10 Bosw. 362. If we adhere to the ruling in Borum v. King, we affirm, not only that an absolute parting with dominion is necessary to perfect a gift, but, when the subject of the gift is a promissory note or similar security, to make it valid and binding, the donor must go further and guaranty the payment of the note by his indorsement, unless he have presence of mind to limit the effqct of his indorsement. In Jones v. Deyer, 16 Ala. 221, this court said: “A valid gift may be made inter vivos of a promissory note payable to the order of the donor, by delivery merely, without indorsement, or other writing.” Grover v. Grover, 24 Pick. 261, and Elam v. Keen, 4 Leigh, 333, support this doctrine. Mr. Perry, in' his excellent treatise on trnsts, sections 96 and 97,-states the doctrine substantially as we have given it above; and in the notes to those sections he cites very many authorities, English and American, in support of it. — E contra he cites the single case of Borum v. King.* As to the promissory note given by Mr. King to his grandson, Borum, we think this court fell into an error, and to that extent that case is overruled.

The conveyance in the present case is a deed, — Code of 1876, § 2194 — and, in that respect, it differs from the instrument interpreted in Connor v. Trawick, supra. The expressed consideration of the deed is love and affection for an infant child, and the subject of the gift is promissory notes, described in the deed. The language of the conveyance is, “ I hereby give, grant and convey, and by these presents do give, grant and convey to the said Ella C., as aforesaid, the following specified notes, to-wit,” etc. “ The same to have and to hold to the only use and benefit of my said infant daughter, Ella C. Crews, hereby reserving to myself the right to manage the above amounts as agent for my' said infant daughter, with the privilege to collect the money on said notes, and re-invest in property for her, the said infant child, if I. see best, or reloan on interest, if I see best, should I live to have the privilege of so managing said amounts specified.” Mr. Crews lived four or five years after executing this instrument,- during which time he, styling himself trustee for the said Ella C. Crews, had assessed to the said Ella C. for taxation, personal property, in amount approximating the face value of the notes, but gradually increasing year by year. These taxes he paid. Soon after the execution of the deed, he acknowledged its execution, and had the acknowledgment certified by a proper officer, and had it duly registered in the proper office. These facts, unexplained, amount to proof of delivery ; and, under the principles stated above, we hold that this was a valid, executed, irrevocable declaration of trust by Mr. Crews, in favor of the infant, Ella O. Crews.

There is proof tending to show that Mr. Ovews purchased a tract of laffd, and had the title conveyed to Ella C. If this took'place after the execution of the deed, we think it should be treated as an investment of the trust fundsyw tanto, under the power reserved to him in the deed. In fact, the hill avers that purchase was an investment of the trust funds, and the complainant will not be heard to deny it.

Other questions-have been argued in this cause, but there is ‘nothing in them. The court of chancery is alone competent to do justice between these parties. The estate of Mr. Crews was distributed before the personal representative had any knowledge -of this claim, so far as we are informed, and hence, the complainant is without remedy for the enforcement of her claim, unless she can pursue assets in the hands of other distributees. Winston v. McAlpine, 65 Ala. 377. This requires the taking of a complicated account of such a character, as clearly gives the chancery court jurisdiction. The estate was not settled or -distributed prematurely; but Ella Corine, being an infant, was allowed to present her claim within eighteen months after the

removal of her disabilities. — -Code of 1876, § 2598 ; Story’s Eq. Jur. §§ 441, 443; Dickinson v. Lewis, 34 Ala. 638.

The decree of the chancellor is reversed, and a decree here rendered, declaring the complainant is entitled to relief. The register will take an account, and ascertain how much of the trust fund was realized by Mr. Crews, above the said sum invested in lands. He will also ascertain the several sums distributed and paid to the several distributees, including the distribution to the said Ella Corine. The burden should be properly apportioned among those who have received distribution.. He will report to the chancellor at the next term of his court. All other questions are reserved for decree by the chancellor.

Beversed and remanded.