Fitzpatrick v. Brigman

Nov 15, 1900
Versions:130 Ala. 450
TYSON, J.

This is an action in the nature of an action of ejectment. Plaintiff and defendant claim title from a common source. One of the important questions presented is, whether the deed from Price to one Buck, through whom plaintiff claims to have derived his title by mesne conveyances, Avas delivered prior to the execution and recordation of the deed from Price to defendant. As delivery Avas necessary to convey title, if the deed was not delivered to Buck until after Price had executed the deed to the defendant, Buck got no title and of ’Consequence conveyed nothing by his deed to Elder, from AAdiom plaintiff got his deed.—Goodlett v. Kelly, 74 Ala. 213, 220. In short, a deed becomes effectual only, as a conveyance of the title, from the date of its delivery. It is true the presumption will be indulged, in -the absence of evidence to the contrary, that the date of the deed, or Avheré the aekncnvledgmént necessary to its execution bears a different date, the date of the acknoAvledgment, is the date of its delivery. *454This presumption, however, is a disputable one, and the time of delivery may always be shown. And' when it is affirmatively shown without dispute, that its delivery was at a time 'different from the date of the deed. or the date of its acknowledgment, the date of the delivery will control in determining when the deed became efficacious as a conveyance of title.

Delivery may be defined to be “a word, act or both combined by which a grantor expresses a present intention to divest himself of title to property described in an appropriate deed.” — 9 Am. &-Eng. Ency. Law (2d ed.), 158. . Manual delivery is not necessary, but in its absence, the grantor must have, by some word expressed or act done, clearly indicated his.intention, at -the time of its signing by him or subsequently while the deed is in hi® possession, that the deed shall be 'considered as executed. As said in McLure v. Colclough, 17 Ala. 96, speaking of delivery: “This may be accomplished by mere words, or by such words and actions as indicate a clear intention that the deed shall be considered as executed; as when a party to an instrument seals it, and declares, in presence of a witness, that he delivers it as his deed, but keeps it in his own possession, and there is nothing to qualify that, or to show that the executing party did not intend it, to.- operate, immediately, except the keeping of,, the deed in his hands, it is a valid and effectual deed; and.actual delivery to the party who is to take by the deed, or to any person for his use, is not essential.”—Arrington v. Arrington, 122 Ala. 510. What is said in the foregoing extract when properly understood in no wise conflicts with the universal principle so often -declared by numerous -courts •and by our own,in Frisbie v. McCarty, 1 Stew. & Port. 56, that the delivery must be so effectual as to deprive the grantor of the right to revoke it. For so long as lie reserves -to himself the locus penitential, there is no -delivery- — -no present intention to 'divest himself of the title to the property. We take it that the-, grantor need not. expressly reserve to hiipself this right to repent, but if his act. upon which , a delivery is predicated does *455not place tlie deed beyond his control, as matter of law, then his right of revocation is not gone.

In the present case, Price, the grantor, simply signed the deed, acknowledged it, and left it with his attorney with no instructions to deliver it to any one. More than a year after defendant received his deed from Price and its recordation, Price’s attorney after being instructed by him to do so, delivered it to plaintiff’s attorney, Smith. On this state of facts, which are undisputed, it seems to us to be clear, that Price could have recalled the deed. He said nothing to his attorney indicating an intention that the deed should be considered as executed and did no act, other than leave it with his agent, without, any instructions as to what he desired done with it. This, act, we think, was utterly insufficient as expressing a present intention on the part of Price to divest himself of the title to the property described in the deed. “The law does not presume, ivhen a deed is handed to a third person, that it has been with the intention to pass title to the grantee. In order to make such an act a delivery to the grantee, the intention of the grantor must be expressed at the time in an unmistakable manner.” — 5 Am. & Eng. Eneyc. Law (1st ed.), note 4, on p. 448.

’The action of the court in permitting Price to testify against the objection of defendant “that if he delivered the deed to his attorney, it was not with the intention of recalling it” and “that if he turned the deed over to Mr. Sellieimer it wasi not to’keep for witness” was manifestly erroneous.—3 Brick. Dig. 479, et seq.

We are urged by appellant’s counsel to review the question as to whether the defendant, being a grantee in a quit-claim deed, can invoke the protection usually accorded to bona fule purchasers for value, without notice. On the state of the proof as shown by the record that question is not raised, since there is no evidence that he paid any value for the land. The recital in his deed of value paid for the land is not evidence as against the plaintiff: who is not a party to or privy under it. Buford v. McCormick, 57 Ala. 428; McGintry v. Reeves, 10 Ala. 137; Falkner v. Leith, 15 Ala. 9; Robinson v. *456Moseley, 93 Ala. 74. Nor is tbe question oí presumptive acceptance by the grantee, Buck, presented, since, as we have shown, there was no delivery to Selbeimer for his benefit — indeed there was no delivery by Price of the deed to any one for any purpose or for the benefit of -any person. But in order to correct a typographical error appearing in the opinion in the case of Arrington v. Arrington, found on page 517 of volume 122, lest it may mislead, we restate in part what we said on this subject. When a deed is for the benefit of the grantee, imposing on him no burdens or duties, the presumption is of his acceptance. If it is duly acknowledged and recorded, the presumption of delivery attaches, which can be repelled only by evidence of -actual dissent of the grantee.

Reversed and remanded.