The plaintiffs are the children and the defendants, Marion Thompson and Mary Thompson, are the grandchildren of the defendant, Samuel M. Cox. Samuel M. Cox owned a large tract of land. His wife died, and some, at least, of his children became restive for fear that he would marry again and dispose of his property in some way that would defeat their prospective inheritance. The children urged him to divide up his land so that their interests might be secure. He told them that if they would employ a surveyor he would divide the land. They did employ a surveyor and Mr. Cox showed the surveyor where to run the lines. Some time after the plats were made he took the plats to a neighbor and friend, Childress, who was a lawyer but not in active practice, and asked him to prepare the deeds, nine in all. Mr. Cox signed the deeds in the presence of two witnesses and left them in the possession of Mr. Childress. *Page 41 How Mr. Childress was to hold them is the question in this case. This action was brought to declare the delivery an absolute delivery, and that the title was in the children and grandchildren, subject to a life estate in Mr. Cox. Mr. Cox denied that the delivery was absolute and claimed that Mr. Childress was merely to hold the deeds subject to his order, and to be delivered to the grantees at his death, in case he did not withdraw them in his lifetime. The Circuit Judge found that the delivery was absolute. In argument the attorneys for the children and grandchildren say there is one question of fact:
"Was the Circuit Judge in error in concluding as a matter of fact that the deeds were placed in the hands of Childress by S.M. Cox with unconditional instructions to deliver them to the grantees upon his death, and without any reservation in S.M. Cox of the right to revoke or recall them during his lifetime?" There are only two witnesses who testify as to what was said at the time of delivery, to-wit, Childress and S.M. Cox.
Childress testified that Cox said:
"Keep them until my death and deliver them to the children."
He also testified:
"Q. Mr. Childress, when Mr. Cox gave you those deeds and told you to keep them, didn't he say, `Keep them for me until my death and then give them to my children?' A. He might have had it that way; I would not be certain; I would not be certain. Q. You would not swear that he did not say that? A. No, would not."
Mr. Childress is very uncertain as to the language that accompanied that delivery to him. When Mr. Childress was asked if Mr. Cox did not say that the reason the deeds were left with him was that Mr. Cox had no place to keep the deeds and he was afraid to keep them in his house for fear that his children might get possession of them when they came to clean up his house, Mr. Childress answered: *Page 42
"I do not know whether he said that or not. Q. Well, if Mr. Cox testifies positively that he did say it, you would not deny it, would you? A. No; I would not deny it, for I don't remember."
Mr. Cox testifies that he left the deeds with Mr. Childress to hold for him (Cox); that he did not regard the deeds as anything more than postal cards to be withdrawn at his will; that at the time of the signing of the deeds and up to the time that this immediate controversy arose he never doubted his right to change his mind and recall the deeds from his attorney and friend; and that he had left the deeds with Mr. Childress as his attorney and friend so that the might be free in his disposition of the property. In order for the children to succeed, they must show the delivery was unconditional. They attempt to show that cardinal fact by one witness and that witness frankly states that he is uncertain as to what was said. Who was most likely to remember? Mr. Cox. There are only two witnesses as to the circumstances connected with the delivery — one confessedly uncertain; the other clear and positive. The weight of the testimony is clearly with Mr. Cox. Then as to the light from circumstances: When Mr. Childress was nearer to the facts in question than he was when he testified, he says that he moved from the neighborhood, but before going he offered to give up the custody of the papers, but Mr. Cox told him to keep them because he had no place to hide them from his children. Mr. Childress has delivered the papers to Mr. Mat Cox, a brother of S.M. Cox, and one deed to George Cox, a son of S.M. Cox, but always on the order of S.M. Cox, and we see in the record no evidence that the grantees were consulted as to their wishes in the matter. There is no evidence of an agreement between Mr. Cox, and his children that the deeds should be executed. Indeed, some of the grantees said the subject of deeds had not been spoken of between them and their father, *Page 43 and George Cox, one of the grantees, signed a written statement in which he expressly disavows any claim under the deed to him. It is reasonably clear that, when Mr. Cox signed the deeds and left them with Mr. Childress, it was his intention that after his death his children and grandchildren should take the land as set forth in the deeds, but until he had done an irrevocable act he could change his mind and change the disposition of the property. Mr. Cox further testifies that he had two propositions in contemplation. One was to make a will, and the other was to make the deeds subject to his recall while he lived, and, if not recalled while he lived, then to be delivered at his death; that he considered the undelivered deeds the safer way, as it would avoid a possible contest of his will.
From a layman's point of view, the explanation is reasonable, but it is said that Mr. Cox treated the deeds as absolutely delivered when his brother suggested the delivery of the deeds to the grantees and a reconveyance from them of a life estate. This was a compromise arrangement, and cannot have the effect of converting a previous conditional delivery into an absolute delivery.
It is said that Mr. Childress refused to allow Mr. Cox to have a reservation of a life estate written into the deeds. The record shows that the objection was based upon the absence of the subscribing witnesses, and not on the ground that Mr. Cox could not alter the deeds.
"The question in this case is: What was the intention of Cox at the time he delivered the deeds to Childress? The surrounding circumstances throw little light on the question in favor of an absolute delivery. The circumstances point the other way. Mr. Cox makes a clear, positive, reasonable statement. Mr. Childress is confessedly uncertain.
I see nothing in the record upon which to base a finding that the children helped their father to accumulate this property. I cannot take a man's property from him, when, *Page 44 as here, the direct positive testimony is in his favor, and the witness against him confessedly does not know.