39 W. Va. 226 | W. Va. | 1894
On the 5th day of January, 1891, Felix Davis filed a bill in chancery in the Circuit Court of Putman county against
On the hearing of the case the Circuit Court having by a former order overruled the demurrer entered a decree in favor of the plaintiff', holding that the devise of the land to the defendant Lizzie Ellis was null and void, and appointed a commissioner to execute a deed to the plaintiff for said two tracts of land.
Erom this decree the defendant Lizzie Ellis appeals, aud assigns as error: (1) The order of the court overruling the demurrer to the bill; (2) the final decree of the court in favor of the plaintiff'.
Three witnesses in this case are objected to as incompetent to testify as to any communication had with Malone Ellis, to wit, Emma Davis, wife of plaintiff', Lizzie Ellis, the defendant, and E. T. Ellis, also a defendant. The Circuit Court properly sustained the exceptions as to the testimony of said Lizzie Ellis and Emma Davis as to any personal-transaction or communication had with decedent. See Kilgore v. Hanley, 27 W. Va. 451; Kimmel v. Shroyer, 28 W. Va. 505. The court should have excluded also the testimony of the defendant E. T. Ellis. He was a party to the suit, and interested in the result thereof not as an heir, as the plaintiff’s counsel intimate, but as having received a deed for himself at the time he received the deed for the plaintiff, as he claims, for another tract of land, from the
The only competent evidence on the subject of delivery is the testimony of W. Ii. Morris, whose testimony as to this matter, is to the following effect; that Malone Ellis, being feeble in health, and believing that he was going to die, and having no children, sent for him, and had him draw up two deeds; the one mentioned in the bill, the other to said E. T. Ellis; that he told said Morris to take’the deeds with him, and deliver them to the grantees ; that witness could not remember when they were to be delivered, or why not delivered at the time, as the plaintiff was in. the house when the deeds were drawn up; that grantor directed him how to dispose of his personal property after his death ;• — -that a short time afterwards, Malone Ellis having recovered from his illness, and being in his office, Morris returned the deeds to him, and told him, he could deliver them himself; — that these deeds were drawn up in lieu of a will that Malone Ellis had formerly made, but, fearing there would be a contest over the will, he had concluded to destroy it and execute the deeds. The evidence further shows that Malone Ellis having afterwards married the defendant Lizzie Ellis destroyed these deeds, made anew deed for part of this land to the plaintiff, who accepted it, and put it on record, and then, by reason of a promise to his then wife, executed a will devising the residue of the land to her. The deed in controversy was not to go on record, nor was possession of the land lo be given under it, until Malone'Ellis’ death.
The law governing this case as quoted in Lang v. Smith, 37 W. Va. 734 (17 S. E. Rep. 213) and sustained by numerous authorities cited, is as follows: “Where a grantor executes a deed, and delivers it to a third person, to hold.until the death of the grantor, the latter parting with all domin
In this case, the plaintiffs proof shows th at, after the deeds were executed, the grantor directed the scrivener, as his agent to take the deed, and at some time deliver it to the grantee, but before he executed the agency in any manner or to any extent he returned the deed to the grantor, and told him to make the delivery himself, thus plainly acknowledging that the agency had not in any sense been executed, but was declined.
It seems to me that this evidence, standing alone, is entirely insufficient to establish the delivery. An agent’s authority may be revoked at any time before it is executed. “So long as the deed is within the control and subject to the authority of the grantor, that is no delivery. And whether in the hands of third persons or in the desk of the grantor is immaterial, since in either case he can destroy it at his pleasure.” Cook v. Brown, 34 N. H. 460-475.
The evidence clearly shows that the grantor intended this deed to operate as a will; that it was not to be delivered until his death; that at the time it was executed he was expecting almost immediate death, and was arranging his business accordingly; that on his recovery he regained the deed, which was still under his control, and not only did not deliver it, but destroyed it, on account of the fact of his re-marriage. He had no children, and his re-marriage caused him to change his plan as to the disposition of his property. He makes the plaintiff a deed for part of
The preponderance of the testimony is plainly with the defendant; it is therefore unnecessary to pass upon the demurrer to the bill, but the decree of the Circuit Court must be reversed and the bill dismissed, at the plaintiff’s costs.