70 Tenn. 643 | Tenn. | 1879
delivered the opinion of the court.
Mrs. Ledgerwood is a daughter of John Gault, deceased, and with her husband brings this bill to set aside a conveyance of a tract of land made by said John Gault to the defendant, his son, Theodore M. Gault, on the 27th of August, 1874, shortly before the death of said John Gault. The grounds of the relief are fraud and undue influence in procuring the execution of the conveyance, and in an amended bill it is alleged that there was no valid delivery of the conveyance in question. The allegations of the origi-
The proof shows that the grantor, John Gault, was, at the date of the conveyance, from seventy to seventy-five years of age, and in feeble health, and the activity of, his mind and will somewhat impaired, and he was, to a considerable extent, under the influence of his wife, Mrs. Patsey Gault, and their son, the said Theodore M. Gault, especially the former, but in the absence of fraud and undue influence he was fully competent to make a valid contract. The proof fails to show that said Theodore M. resorted to any undue means to procure the conveyance, and, in fact, so far as we see from the proof, he was not specially active in the transaction, nor do we think that Mrs. Gault improperly exerted her influence in the matter, or interfered further than it was legitimate11 for her to do so in view of her relation to the parties and her interest. The deed purports to “give and convey” two hundred acres of land upon condition the said Theodore M. should take care of and provide for the support and maintenance of the said John and Patsey Gault during their lives, and take care of their property and interests, and upon the failure of said T. M. Gault to perform these conditions, the conveyance is to be void. It is argued that as said John Gault had, aside from the lands conveyed, ample means for the support of himself and wife, and died soon after, making, by his will, ample provision for his wife, the said Theodore M. would not in reality be called upon to support them, and there was therefore no real
This purports to be a deed of gift frbm a father to a son, upon certain conditions stipulated, and as it would have been valid without any conditions, it is equally so although it may appear that the performance of the conditions exacted would not be a full value for the property. As to this, however, there is no proof in the present case. The relief upon the first ground was, therefore, properly refused.
Upon the second point it appears that when the paper was executed and witnessed, the said John Gault retained it in his possession, saying, according to one witness, that he would retain it until his death, and it ■did in fact remain in his possession until his death, a few weeks after.
The instrument, however, is peculiar in form, be
In the case of an ordinary deed of conveyance, the-retaining possession of the deed by the grantor would1 be a strong circumstance against the presumption of a delivery, but even in such a case it would not be-conclusive, as “a delivery” does not necessarily consist in the actual manual transfer of the paper from the one party to the other. If the deed be fully executed and witnessed, and nothing further remains-to be done by either party as a condition upon which it is to take effect; in other words, if the circumstances all indicate that it was the intention of the parties that the deed was to take immediate effect, then the delivery will be regarded as complete, although the actual custody remain with the grantor. See Farrar v. Bridges, 5 Hum., 411; MaEwen v. Trent, 1 Sneed, 186; 4 Kent, 505.
For a stronger reason this doctrine must apply in a case like this, where the instrument is executed by both parties, and evidently not only a conveyance of'
In such case there might be good reason for the grantor considering himself to be the proper custodian of the paper as the evidence of the grantee’s obligation to him. The circumstances in this case show that the parties intended this contract -to take immediate effect, it was acted upon by both parties, the grantor fully recognizing it in his will subsequently executed.
The decree of the Chancellor dismissing the bill will be affirmed with costs.