94 Ga. 50 | Ga. | 1894
A deed by Arnold conveying to the plaintiff' the premises in dispute was attacked by the defendants on the ground that the plaintiff had refused to accept the deed, Arnold testifying that a day or two after it was executed and handed to the plaintiff’s husband to be delivered to her, she returned it to him (Arnold) saying it was “ no account,” and left it in his office, and it had remained in his possession ever since, until produced at the trial in response to notice. On this subject the defendants requested the court to charge the jury as follows: “If the plaintiff never accepted delivery of this deed, but it was brought to her by a person other than the grantor, and she immediately repudiated the deed and brought it back to the grantor, saying she would not have it, there would be, in law, no delivery of the deed, and it would not be effectual to pass title to the plaintiff. Delivery to be effectual must be accepted as such.” The court refused to charge as requested, but charged that “ a deed is delivered in the .sense of the law when the person who makes it puts it in the possession of the person to whom it is made, with the intention that it shall pass the title to such person. After such a delivery, the mere return of the deed by the
We think the court erred in refusing to charge as requested, and in charging as he did on this subject. Delivery of a deed consists of more than the mere handing of the deed to the grantee. In order to constitute a complete delivery, there must be acceptance by the grantee. Where a grantee retains a deed without objection, acceptance will be inferred. It is a presumption of law that a party accepts whatever is for his benefit; but this presumption may be rebutted. Certainly it cannot be the law that the mere handing to a person of a deed which he forthwith returns and declines to accept, invests him nevertheless with the title which the maker of the deed seeks thereby to convey. If a deed conveying merely a life-estate should be sent to the vendee of a fee simple title, and he should return it and decline to accept anything less than the title bargained for, it certainly could not be contended that the mere placing of the deed in his possession would invest him with a life-estate notwithstanding his refusal to accept; yet this would be so if the rule jaid down by the court below in this case is correct. It is true the learned judge who delivered the opinion in the case of Ross v. Campbell, 73 Ga. 309, said that “ our law does not make acceptance, as well as delivery, an essential requisite of a deed to pass title to land,” and cited section 2690 of the code, which declares: “A deed to lands in this State must be in writing, signed by the maker, attested by at least two witnesses, and delivered to the purchaser, or some one for him, and be made on a valuable or good consideration.” In that case, however, it was not necessary to say this in order to sustain the decision, inasmuch as it was held that the facts and circumstances showed that the grantee did accept the deed in question. Besides,
Judgment on the main bill of exceptions, reversed; on the' cross-bill, affirmed.