Hall v. Hall

Fullerton, J.

(dissenting) — I am unable to concur in the foregoing opinion. On the question whether a divorce should be granted, the evidence, to my mind, is by no means conclusive. The evidence shows that, in the battles of words so frequently occurring be*620tween the parties, the respondent was abundantly able to hold her own, and that, in the physical combats, she usually emerged the victor. It is not shown that Elmer Hall was always, or even usually, the instigator of these combats, and if it be the rule, as I conceive it to be, that divorce is a remedy for the innocent, not the guilty, I can see no reason for granting a divorce to either party.

But passing this, there is, in my opinion, even less reason for setting the deed aside. It is shown, without contradiction, that the property conveyed by the deed was the separate property of Elmer Hall. The land itself was acquired by him prior to his marriage with the respondent, and the buildings erected thereon, although erected subsequent to the marriage, were paid for in part by money borrowed from Oliver Hall and in part from a legacy which Elmer received from an uncle. This money was loaned by Oliver to the appellant in 1912, and it seems to be assumed by the majority that this was the total advancement and total of the indebtedness owing by Elmer to Oliver. But this overlooks other parts of the record. The appellant lost an arm at the shoulder in an accident. Seemingly there was difficulty in causing the wound to heal, and Oliver bore the expense of five different surgical operations, with the accompanying costs of hospital fees, nurses ’ services and medicines, before a cure was effected, no part of which was ever repaid. Moreover, Oliver continuously made advancements to the parties. Indeed, the respondent in her brief says: “It is conceded that, over a period of a good many years prior to the execution of this instrument, the appellant, Elmer Hall, received considerable sums in contribution from his brother, Oliver Hall.” It is shown, also, that the sum of one hundred dollars was loaned immediately preceding the execution of the deed, at which *621time Elmer told Ms brother that he would execute a deed of the property in payment of Ms obligations to him. Elmer testified, also without contradiction, that the respondent knew of and consented to the execution of the deed, saying to him that she wanted Oliver paid off as she “was tired of being supported by him.” It seems to me, therefore, that there is no justification for the holding that the deed was executed without consideration, or for a consideration less than the value of the property, or for a consideration barred by the statute of limitations.

Nor do I think there is any justification for the conclusion that there was no delivery of the deed. The quotation made from Elmer’s testimony in the majority opirnon seems to have been taken from the abstract, and to my mind does not clearly reflect his actual testimony. Beading the testimony from the transcript, it seems to me to warrant the conclusion that the escrow was but a temporary disposition of the deed — a disposition pending Oliver’s absence from’ his home, and that it was to be delivered on his return. Certain it is that Elmer never afterwards had possession of the deed, and the instrument itself bears on its face the endorsement of the recording officer to the effect that it was recorded at the request of Oliver. Delivery is largely a question of intent, and when we have a showing of direction on the part of the grantor to deliver to the grantee, followed by a showing of subsequent possession of the deed by the grantee, there is sufficient evidence of a delivery.

As said by the majority, there is not in the evidence any showing of actual fraud or moral wrong on the part of the appellant Oliver Hall. It is said, however, that there is sufficient evidence to warrant the conclusion that Elmer Hall executed the deed with intent *622to deprive, his wife of the opportunity to he awarded an interest in the property. The conclusion seems to .he founded on the statement, made earlier in the opinion, “that the deed seems to have been made at a time when the relations between himself (Elmer) and wife were so strained as to strongly suggest an impending separation. ’ ’ But I can find nothing in the record showing anything unusual in the parties’ relations at that time. There was then, perhaps, bickering and quarreling between them, but, as I read the record, this was the usual rather than the unusual in their marital relation, and that nothing then occurred more than had occurred many times before and afterwards between them. It must be remembered that the parties lived together for a considerable time after the execution of the deed, and I do not find that the respondent in her testimony in support of her action for divorce lays any particular stress on the happenings at the particular time. But conceding that Elmer had a fraudulent intent, the fact does not warrant setting aside the deed. The deed was made for a valuable consideration, a part of which was a present advancement, and fraud in both grantor and grantee must be shown before that result can follow.

I cannot think, therefore, that there is any justification for the decree of the trial court.