Coln v. Coln, No. 1866

No. 1866 | S.C. | Mar 30, 1886

Opinion by

Mr. Justice McIver,

This was an action to remove cloud from title by cancellation of a deed, which plaintiff alleged defendant had received with full knowledge of plaintiff’s title, and had put upon record before plaintiff recorded his deed. All the issues of law and fact were referred to a referee, who made his report, stating his conclusions of law and fact separately. He found that plaintiff’s deed had never been delivered, and that the complaint should be dismissed. The Circuit decree (Witherspoon, J.) was a simple order confirming this report. On appeal, held—

1. Where a decree confirms the separate findings of fact and law by a referee, it i$ not necessary that the decree should itself make separate findings.

2. Findings of fact by referee and Circuit Judge, confirmed.

3. Delivery is essential to the validity of a deed, and the mere fact of manual delivery, in the absence of intention by that act to pass the title, will not be sufficient. In the absence of evidence to the contrary, intention to deliver may be inferred from mere manual delivery.

- 4. It is always competent to receive parol testimony as to the delivery of a deed; and when the question is as to the bona fides of a deed, such evidence may be received to show that the consideration named in the deed was not in fact paid.

5. In testifying to a date of a debt different from the date appearing in a judgment on such debt, in evidence, the witness does not contradict such record, and is not incompetent.

6. An exception couched in general terms cannot be considered. Judgment affirmed.