Lewis v. Merryman
114 A. 655
Pa.
1921
Check Treatment

Opinion by

Mr. Justice Kephart,

Defendants’ entire case turns on the sufficiency of the evidence to overcome the presumption of delivеry attaching to a recorded deed. It is admitted a deed, absolute on its face, without reservation or restriction, was executed, acknowledged and recorded in Centre County eighteen years ago. Plaintiffs’ decedent was grantee therein, while defendants claimed through the will of grantor. Delivery is a matter of intention to pass title. It may be accomplished by words alone, by acts or by words and acts. To be sufficient in law it must be found grantor has parted with the title: Smith v. Markland, 223 Pa. 605, 612. When delivery is disputed it is generally a ‍​‌​​​​‌‌‌‌‌‌‌‌​‌‌​​‌‌‌‌​​​​​‌​​​‌‌​​​‌‌​​‌​‌​​‌‌‍question for the jury (Galbraith v. Zimmerman, 100 Pa. 374); particularly is this true where delivery is solely a matter оf oral proof. A delivery is complete, however, when a deed is acknowledged before a propеr officer as being signed, sealed and delivered without an act, expression or writing indicating an intention to qualify this formal аct: Blight v. Schenck, 10 Pa. 285. Retention of the deed by the grantor will generally negative this idea, but a delivery to a third person for thе grantee’s use, or, after ‍​‌​​​​‌‌‌‌‌‌‌‌​‌‌​​‌‌‌‌​​​​​‌​​​‌‌​​​‌‌​​‌​‌​​‌‌‍execution and acknowledgment, the grantor’s parting with all control over the deed:, is а good delivery: Cummings v. Glass, 162 Pa. *258241; Eckman v. Eckman, 55 Pa. 269; Blight v. Schenck, supra; Stephens v. Huss, 54 Pa. 20; Eckman v. Eckman, 68 Pa. 460, 464. But a delivery does not take place where the deed is delivered to a third party who is аttorney for both parties, without an express understanding that it was to be handed to the grantee: Sears v. Scranton Trust Co., 228 Pa. 126, 141.

Cеrtain acts with respect to delivery assume a higher evidentiary value because the security of estates so rеquire it; thus, it ‍​‌​​​​‌‌‌‌‌‌‌‌​‌‌​​‌‌‌‌​​​​​‌​​​‌‌​​​‌‌​​‌​‌​​‌‌‍has been held that signing, attestation, acknowledgment and recording are prima facie evidence of delivery (Rigler v. Cloud, 14 Pa. 361, 364; Ingles v. Ingles, 150 Pa. 397, 401), and the declarations of the grantor in some instances cannot overcome this presumption : Kеrn v. Howell, 180 Pa. 315, 321; Dickey v. Norris, 216 Pa. 184, 186. But the prima facie case, or the presumption arising ‍​‌​​​​‌‌‌‌‌‌‌‌​‌‌​​‌‌‌‌​​​​​‌​​​‌‌​​​‌‌​​‌​‌​​‌‌‍from recording, is not irrebuttable: Kanawell v. Miller, 262 Pa. 9, 14; Smith v. Markland, 223 Pa. 605; Clauer v. Clauer, 22 Pa. Superior Ct. 395.

To оvercome the presumption and the burden thus imposed, appellant depends on the testimony of Mr. Wilt, a trustee of Bockview Home, Huntingdon County, who, while on a journey in search of funds for this institution, called on the Crains, the grantors. In discussing a proposed gift to that institution, as the men were advanced in years, he suggested the advisability of taking steps looking toward thе ultimate disposition of the farm on their death. He was informed it was their wish to give the property to a niece, Mrs. Lewis. A dеed was suggested as the proper plan to carry out their wish, subject to their right to use and occupy the land in any wаy they saw fit until their death. This plan was agreed upon and the matter was left in Wilt’s hands for attention, and, because of the gift tо the institution, all charges were to be at his expense. The deed was prepared, executed, acknowledged and witnessed, wherein Mrs. Lewis was named as grantee. It was turned over to Mr. Wilt, who informed Mrs. Lewis of the proposed *259plan. She readily consented to the execution of an agreement Mr. Wilt considered necessary as a “safeguard,” “sort of a protection so she could not interfere with them during her lifetime, notwithstanding the fact that the deed was made.” And the agreement was “to cover any possibilities that might arise afterwards because the deed was on record.” When the deed was delivered to Mr. Wilt, it was without restriction or limitation, save only the obligation ‍​‌​​​​‌‌‌‌‌‌‌‌​‌‌​​‌‌‌‌​​​​​‌​​​‌‌​​​‌‌​​‌​‌​​‌‌‍to secure to the Crains thе full enjoyment of the property during life. It must be a necessary inference, from this evidence, the*deed could.be delivered, when this duty was met, and here it differs from Sears v. Scranton Trust Co., supra. After the deed was executed and placed of record, ■ the grantors informed the assessor, — who made assessments for the purpose of taxation, — they had nothing to assess, as Mrs. Lewis owned the land.

If the deed was not to be delivered until after death, thus making it a testamentary dispositiоn, there was no necessity for the agreement. When the latter was secured there was an admission that the granteе had a then present interest in the land. No effort was made to conceal the fact of recording, which could have been discovered at any time, and, so far as we are advised by the record, the grantors never questioned it nor the deed, the latter never having been returned to their possession. It is true Mr. Wilt, in the course of his testimony, makes use of such language as “after their demise, or their death,” “the deed was not to go into effect until after the death of thе Crains,” and “the deed was SO' made as not to convey it over to them during their lifetime.” This latter statement of course is in direсt conflict with the deed, and all of them, considered with his entire testimony and the acts done, are not sufficient to rebut the presumption of delivery. His story, throughout, evidences an intention on' the part of the grantors to execute and deliver the deed, provided possession and use of the property was secured to them during life. His statements, at best, *260shоw a confusion of ideas, if they are not in entire harmony with what transpired when he secured to the Crains the property during the remainder of their lives. To reform a deed absolute on its face, — attended with all the formalities of law, duly reсorded, handed to a third party without restriction or reservation, save as to the one purpose mentioned, — and hold it a testamentary instrument, requires evidence more certain than the loose statements here submitted. The reservation of rents, use and occupation would not be sufficient (Knowlson v. Fleming, 165 Pa. 10; Eckman v. Eckman, supra), and the intention must be еstablished by proof of acts of the grantor. The strongest evidence of delivery was the fact of recording, and thе burden of overcoming the presumption resulting therefrom was c>n defendants, who, to destroy it, must do so by clear, positive proof that no delivery was intended, and that Mr. Wilt was not authorized to record the instrument. The evidence before us certainly did not meet that burden.

The judgment of the court below is affirmed.