87 W. Va. 341 | W. Va. | 1920
This appeal brings up for review a decree of the circuit court of Mason county establishing a deed made by E. W. Foreman in his lifetime to the plaintiff as valid and binding, and directing that the same be recorded; and setting aside a deed made by said E. W. Foreman to the defendant Maude L. Boush, as- a cloud upon the title of the plaintiff.
E. W. Foreman was the father of the plaintiff and the defendant Maude L. Boush. In the month of December, 1914, the said E. W. Foreman anticipated that a suit would be brought against the members of the board of education, he being one of them, to hold them personally liable for an alleged illegal contract made by that board. One of the other members had left the state, and the other was insolvent, so that in case of any recovery Foreman would, be compelled to pay the whole of it. He owned a tract of land containing about 71 acres on which he resided, and consulted with some of his acquaintances as to how he could divest himself of title thereto so as to avoid having the same subjected to the satisfaction of any judgment that might be rendered against him as a member of such board of education. He finally determined that he would convey this land to his son, the plaintiff Arthur L. Foreman, for the consideration that his son would support him during his life and pay to the defendant Mrs. Boush the sum of five hundred dollars, and to another son the sum of five hundred dollars, and his lawful indebtedness. On the 25th of December, 1914, he made a deed by which the land was conveyed to Arthur L. Forman for the above consideration. At the time he came to this conclusion the plaintiff was living
The contention of the defendants is that the deed of December 31, 1914, was never delivered. It was found after the death of E. W. Foreman in his trunk among other private papers, and had never been admitted to record. The plaintiff’s contention is that when he signed and acknowledged the deed of November 5, 1915, conveying the property back to his father, it was the purpose that upon the delivery of this deed to his father his father would then deliver the deed of December 31,1914, and revest the title in him. This contention would attribute to both of the parties very little business acumen. It appears that before that time the fear of a liability on account of the board of education matter had passed away, and that the only debt which E. W. Foreman owed was the debt of $150.00 mentioned in the deed of December 31, 1914. It further appears that he paid this debt off before his death, and no effort was ever made, or offer made, by the plaintiff to pay it. Under the conditions which existed in November, 1915, the deed which had already been delivered dated Dec. 25, 1914, was effective to vest the title to the real and personal property in the plaintiff, and only made it subject to the lawful debts of the grantor, which debts were the two notes which he owed to Roush, aggregating one hundred and fifty dollars. For him to convey the property back to his father at that time, and his father then to reconvey it to him would have been an entirely futile thing. It would have imposed no less obligation upon him than was imposed upon him by the deed of Dec. 25, 1914. The fact that the plaintiff procured from the notary the deed of December 31, 1914, and the unexecuted deed
It is quite tru-e that it is not necessary that manual delivery be made of a deed in order to make it effective. The question of delivery is largely one of intention, and when the deed is not itself delivered to the grantee therein this intention of the parties must be gathered from their conduct and from any statements which they may have made in regard to the transaction. In this case the deed of December 31, 1914, signed and acknowledged on that day by E. W. Foreman, was found after his death among his private papers. More than two years had passed since its execution, and he had never delivered it manually to the
We are therefore of opinion that the decree of the circuit court is wrong, and that the plaintiff is not entitled to any relief upon the showing made. We will reverse the decreé complained of and dismiss the plaintiff’s bill.
Reversed; Mil dismissed.