13 S.E.2d 611 | N.C. | 1941
Action to set up a lost deed. Issues were submitted to the jury and answered in favor of the plaintiff. From judgment on the verdict defendants appealed. The only question raised by this appeal relates to the delivery of the deed. The defendants concede that there was evidence of the execution and acknowledgment of the deed by the grantor, but *361 deny that there was sufficient evidence of delivery to operate as a transfer of the legal title to the plaintiff. The deed was lost and never recorded. Defendants' only exception is to the denial of their motion for judgment of nonsuit.
The material facts were these: In 1937, the grantor, J. T. Aycock, had his attorney prepare two deeds, one to J. T. Aycock for the land in question from Mewborn, Trustee (which was duly executed), and the other from J. T. Aycock and wife to the plaintiff, who was his niece. J. T. Aycock died July 1, 1939. Three or four months prior to his death he and his wife acknowledged the execution of a deed, presumably that to the plaintiff, before a notary public. Marjorie Barnes, daughter of the plaintiff, testified as follows: "About two weeks before he (J. T. Aycock) died, he showed me two deeds. He said, `Marjorie, one is one I got for the Calvin Aycock place, and the other one is the one I have made to your mother, and I am putting them in the Bible, and I want you to be sure and remember where they are, and tell her to have them recorded.' I saw him put these two in the Bible. Q. Did he give the Bible to you or did he put it away himself? A. No, the Bible stayed on the dresser ever since I could remember, never was moved unless someone was reading it. Q. Is that where he left it after he put the deeds in it? A. Yes, sir. Q. You didn't take hold of the Bible? A. No." There was no evidence that Marjorie Barnes told the plaintiff of her conversation with the grantor, or that plaintiff ever saw or had possession of the deed. there was evidence that another witness saw the two deeds in the Bible four or five days before his death. At that time he was sick and unable to get up. He was paralyzed immediately preceding his death. There was other evidence that J. T. Aycock had expressed his intention of giving the land to the plaintiff and had permitted her to have control of it. After the death of J. T. Aycock the deed from Mewborn, Trustee, was found in the Bible, but the deed to the plaintiff was not there and was never found.
It is elementary that in order to effectuate the present transfer of the legal title to land there must be an instrument in writing to that effect, signed, sealed, and delivered. In this case there was evidence that the instrument under which plaintiff claims was written in proper form, and that it was signed, and presumably sealed, by the grantor. There was evidence of his intention to convey the land to the plaintiff. Was there a constructive delivery of the deed so as to vest the title in the plaintiff?
In the leading case of Tarlton v. Griggs,
This rule has been steadily adhered to by this Court. Perry v. Hackney,
In the last case in which this question was considered, Ins. Co. v.Cordon, supra, Clarkson, J., speaking for the Court, quoted from Gillespiev. Gillespie, supra, as follows: "Both the delivery of the instrument and the intention to deliver it are necessary to a transmutation of title." To the same effect is the holding in the recent case of Orris v. Whipple,
The effect of these decisions is to establish the rule that to constitute delivery there must be a parting with the possession of the deed and with all power and control over it by the grantor for the benefit of the grantee at the time of delivery. Phillips v. Houston,
Applying these principles of law to the facts appearing in the record here, we reach the conclusion that the evidence fails to show delivery. The deed was placed by the grantor in his Bible on the dresser in his bedroom. He told the witness, whose testimony constitutes the sole evidence on the point, where he was putting the deed, and to tell the plaintiff where it was and to have it recorded. This message was undelivered. The deed never came into the possession of the plaintiff or anyone for her. It remained in the grantor's own receptacle and under his control. There was a failure to show a parting with the possession of the deed by the grantor, or with all power and control over it, so as to operate as a delivery, necessary to complete the conveyance. The burden was on the plaintiff to show delivery. It was said in the case of Moore v. Collins,
In the case of Erbach v. Brauer,
Defendant's motion for judgment of nonsuit, on the ground that there was no evidence of delivery sufficient to warrant submission of the case to the jury, should have been allowed.
The judgment of the Superior Court must be
Reversed.
