| Ark. | Feb 23, 1920
(after stating the facts). In the first place, it may be said that a preponderance of the evidence shows that the deed under which appellants claim title to the land in controversy was never delivered. The question of delivery is one of fact to be determined by the intent of the grantor, as manifested by his acts or words or both.
In order to constitute a delivery, there must be an intention to pass the title immediately to the land conveyed, and that the grantor shall lose dominion over the deed. Battle v. Anders, 100 Ark. 427" date_filed="1911-10-30" court="Ark." case_name="Battle v. Anders">100 Ark. 427, and Bray v. Bray, 132 Ark. 438" date_filed="1918-02-18" court="Ark." case_name="Bray v. Bray">132 Ark. 438. Tested by this rule, it is manifest there was no delivery. The deed was never filed for record. It never really left the possession of the grantor. It is true that W. A. Davis testified that his brother, W. E. Davis, handed the deed to R. M. Davis and that the latter kept it a little while before he handed it back; but the accompanying facts show that this was all a mere pretense, and was not intended for an actual delivery of the deed. The uncontradicted evidence shows that W. E. Davis continued in possession of the land, collected the rents and profits therefrom, had them assessed in his own name, and paid the taxes thereon until the date of his death. R. M. Davis never claimed any title to the lands, but on the contrary told various persons that he was renting them from his brother and regularly paid the rent thereon. He had no money with which to pay for the lands and was indebted to.his brother at that time. A similar transaction was had between W. E. Davis and W. A. Davis upon the same occasion. W. A. Davis said he found the money in the barnyard of W. E. Davis with which he paid for his land. It is a significant fact that he did not know that he would find the money and that just after he found it he met his brother, W. E. Davis, and showed him the pocket book and the money. W. E. Davis, after counting it, said there was $12,000 in the pocket book and at once tendered him a deed which had already been executed. Neither W. A. Davis nor R. M. Davis had any money at the time. The record shows that W. E. Davis was a wealthy man for that section of the country, and the only reasonable hypothesis ig that he furnished the brothers the money with which to carry out the pretended sale so that in the event a large judgment was obtained against him in the damage suit then pending his brothers could hold the lands and protect him. R. M. Davis and W. A. Davis only held the deeds in their hands for a little while in the barnyard when they handed them1 back to W. E. Davis. He told them that he would put them in his safe and for them to say nothing about the transaction. No- claim was ever made by W. A. Dávis or R. M. Davis to the lands until after the death of W. E. Davis. The retention of the deed by W. E. Davis under the circumstances as disclosed by the record shows there was no delivery of the deed by him to R. M. Davis with the intention of passing the title to the lands and appellants therefore are not entitled to recover the lands in this action.
For another reason appellants are not entitled to recover. The evidence which we have just recounted as well as the other evidence in the case shows that W. E. Davis executed the deed for the sole purpose of protecting the property from a legal liability. In other words, there was a damage suit for a large amount pending against him at the time and the practically undisputed evidence shows that the deed in question was executed for the fraudulent purpose of placing the property beyond the reach of his creditors and for that reason it is void. But it is contended that,appellees are not entitled to bring suit to set aside this conveyance as being made in fraud of his creditors. Counsel are mistaken in this contention. Section 81 of Kirby’s Digest provides that an administrator of a fraudulent grantor may bring a suit in chancery to have the deed so executed set aside for the use and benefit of the heirs at law of the fraudulent grantor saving the rights of creditors and purchasers without notice. In construing this statute the court has held that where the executor of an alleged fraudulent grantor was the grantee and refused to bring a suit to set the deed aside, the heirs at law of the grantor have the right to bring it, making him a defendant. Moore v. Waldstein, 74 Ark. 273" date_filed="1905-02-18" court="Ark." case_name="Moore v. Waldstein">74 Ark. 273.
The administrator joined with the heirs at law of W. E. Davis, deceased, in their cross-complaint to the present action; bnt, even if he had not done so, nnder the case jnst cited, the heirs at law might have proceeded without him. If under the statute the' administrator and heirs at law could bring a suit to set aside the deed of their grantor as having been executed in fraud of his creditors, it follows that they could defend a suit brought against them for the possession of the lands.
Therefore, the decree will be affirmed.