122 Ala. 510 | Ala. | 1898
— This was a statutory action of ejectment for the recovery of certain lands which the plaintiffs claim title to under a deed of gift from their reputed father. The single question raised in the trial court was, whether the deed was delivered. It appears from the testimony that the plaintiffs at the date of the deed were infants of tender years, the eldest being about five years of age, residing with their mother; and the grantor, their reputed father, shortly after its date handed it to their mother, they having no legally appointed guardian, in a sealed envelope, saying to her: “Here, Fannie, take these papers and if I die before you do, look after them-for the children; and if you die before I do, I will look after them.” The mother preserved the package without opening it until 1897, and when she did so for the first time learned or knew of the contents and nature of the instrument or deed contained in it. King, the father, died in possession of the lands in 1881, about two years after the date of the deed.
The deed has the names of two persons written in the place where the names of subscribing witnesses are usually placed and found upon such instruments, but the word “attest” or “witness” does not appear above or in conjunction with these names. Nor are there any other words appearing upon the deed showing the purpose of their signatures. No point, however, was made upon this in the court below, and the plaintiffs without objection were permitted to prove the genuineness of the signature of the grantor and of the two signatures of these persons as though the attesting words or clause were there, and those names were treated as though the persons had subscribed them as witnesses to the deed. But had it been made as an objection to the deed it would have availed nothing. At' common law attesting witnesses to a deed were not essential to its validity as a conveyance of lands, and prior to the adoption of the statutes requiring them to be attested or acknowledged this rule prevailed in this State. — Hendon v. White, 52
It is not controverted by appellant’s counsel, and indeed it cannot be, that a delivery of the deed was essen
We have no doubt that it is' of no consequence that such third person has no knowledge of the nature of the instrument, if the intention of the grantor was to execute it. It oftentimes happens that an actual delivery can only be made tó a third person. The case under consideration is an example of this kind. Where the grantees are minors of tender years, incapable of understanding and appreciating the importance of preserving the paper itself upon which the words composing the deed are written, much less, being utterly unable to comprehend the benefit being conferred upon them by investing in them the title in valuable property, the deed must, of necessity, be delivered' to some third person capable of preserving it as a muniment of title for them.
■In the deed, King, the grantor, expressly recognized the plaintiffs as his children, speaking of them as his sons and .daughter, and delivered it'to their natural guardian and protector, enjoining upon her the watchful care of it so long as she lived, at the same time impliedly saying he would do so also, and in case he should'outlive her he expressly said he would see to its preservation. There was nothing in his language which can be fairly construed that it was his .intention that the delivery was a conditional one. lie surrendered to her the entire custody of the package, and there was nothing in his declaration to her that indicated that in the event her death was before his, and the responsibility of the preservation of the package should then devolve upon him, that it should then be regarded as inoperative as a conveyance to the children. On the contrary, he declared his express intention of taking care of it. Nor can it be contraed that Mrs. Arrington was King’s agent to deliver the package to the children, or his agent for the preservation of it for him. It may be true that he expected, and doubtless he did expect, her to deliver it to them after
The only remaining contention of appellee against the validity of the deed is based upon, the proposition that there was no acceptance by the grantees of the provisions of the deed. We are aware that when a conveyance of lands is made to an adult without his knowledge and assent and delivered to a stranger, that the decisions of the courts are not in harmony as to whether the title passes at once as an effectual delivery. — 3 Washburn on Beal Prop. 291, 292; 1 Devlin on Deeds, § 287. Whatever may be the law as declared by the courts of other ¡States, tlie rule in this State is: “When a deed is for the benefit of the grantee, imposing on him no burdens or duties, the presumption of delivery attaches, which can be repelled only by the evidence of the actual dissent of the grantee.” — Elsberry v. Boykin, 65 Ala. 340, supra; Mallory v. Stodder, 6 Ala. 801. If this presumption obtains in favor of adults, the reason for its application in the present case, where the beneficiaries are unfortunate illegitimate infants, incapable of assenting to or accepting the benefits conferred upon them by the generous and manly act of their reputed father in his recognition of them and providing for them, are certainly more cogent and forceful. — 1 Devlin on Deeds, § 286, and authorities cited in notes 1 and 2. The court should have admitted the deed in evidence. — Gregory v. Walker, 38 Ala. 26.
For this error the judgment is reversed, and the cause remanded.