27 S.D. 287 | S.D. | 1911
This was an action to quiet title tO' an undivided one-third interest in and to certain town lots situated in Elkton, Brookings county. Originally the lots in question were the property of one Mary Cassidy, who died intestate, in January, 1902. On the distribution of her estate, on July 18, 1904, an undivided one-third of said lots was assigned to her husband, John Cassidy.
The rule seems to be well established that, where a deed is found in the possession of the grantor, the presumption is, in the absence of evidence to the contrary, that it has not been delivered. 13 Cyc. 733; Shetler v. Stewart, 133 Iowa, 320, 107 N. W. 310, 110 N. W. 582; Wilenou v. Handlon, 207 Ill. 104, 69 N. E. 892. When a deed, unrecorded, is found in the possession of a defendant grantor, the burden of proof is on the plaintiff claiming title under such deed to show a delivery. 13 Cyc. 730; Devaney v. Koyne, 54 Mich. 116, 19 N. W. 772; Tyler v. Hall, 106 Mo. 313, 17 S. W. 319. Where a deed is found in the possession of the grantor unexplained, the presumptions in relation to> the delivery thereof are exactly opposite to. those where the deed comes from the possession of the grantee. We are of the opinion that section 923, Civ. Code, has no reference to a deed in the possession of the grantor. In the case at bar the burden' was on the plaintiff to produce before the court satisfactory evidence to overcome the presumption of nondelivery arising from the possession of the deed in question by the defendant grantor; or, in other words, the burden was on plaintiff to satisfy the court, by evidence, that a delivery had been made by the grantors to the grantee. -As a whole, the evidence submitted is not clear, and the circumstances thereof are conflicting.
It is contended by plaintiff that the deed in question was in the possession of the grantee, John Cassidy, at the time of his
Another significant fact appearing from the record is that the decree of final distribution of the estate of Mary Cassidy did not set this property, described in this deed, over to John Cassidy as a 'homestead, which would reasonably seem to indicate that that part of the program had been abandoned or for some reason not carried out. The county court may have concluded that an undelivered deed was insufficient to warrant the setting of this property over to John Cassidy as a homestead. The mere fact alone that Alexander, as attorney for Thomas Cassidy, took this undelivered deed and showed the same to the county judge could in no manner prejudice the rights of the grantors, or constitute this act of his a delivery of the deed, unless the deed had, prior thereto, in fact,, been delivered to him by the grantors for that purpose. The testimony indicates that the grantors never parted with dominion and control over this deed. We are of the opinion that the trial court was clearly warranted in sustaining the objection to the introduction in evidence of the deed (Exhibit 4).
The judgment of the circuit court is affirmed.