Lynch v. Lynch

83 So. 807 | Miss. | 1920

Cook, J.,

delivered the opinion of the court.

The appellant, the father of the appellee, exhibited his bill of complaint in the chancery court of the First district of Hinds county, praying for the cancellation of a certain deed of gift heretofore signed and acknowledged by complainant and recorded in the office of the clerk of the chancery court.

This deed, by its terms, conveys certain described lands to the appellee and reserves to the grantor a life estate in the lands.

The sole question presented by this record is whether or not the deed from appellant to appellee was ever delivered to appellee. There is no evidence tending to show that the deed was manually delivered to the grantee, or to any one . for him except the recording of the deed upon the records of the county. The evidence shows that the deed has always been in the custody of the grantor except the time elapsing between the delivery of the deed to the clerk for record and redelivery of same to the grantor after it had been recorded.

The appellant testified that he did not intend to deliver the deed unless he got sick.

A brief statement of the undisputed facts will make clear the law of the case. The appellant was advised by his physician that he was in a rather serious condition physically; that he had vertigo and might at any time fall down a stairway and kill himself; and suggested that it would be wise for him to make a will, or in some way provide for the disposition of his property in case he should die. Acting upon this suggestion, he consulted a lawyer, and acting upon his advice he executed the deed now in question, conveying the land to appellee, but reserving a life estate in himself.

The grantee knew nothing about the purposes and action of his father before the deed was executed and recorded. It appears, however, that he did hear some time afterwards that his father had made some disposition of his property. He testified that, having heard that his father had made some disposition of his property, he went to see him about it. We quote from the record that part of appellee’s testimony referring to ihe deed in question, viz.:

“I said, ‘Papa, I came over here to-day to see you and ask you,’ I said, ‘what are you going to do for me. You gave Fred,’ I said, ‘or sold him, all this Country Chib property, and mother gave him that seventy-one acres where the homestead is, and you ain’t gave me a thing at all,’ and he said: ‘You just go ahead on home and rest easy; I have made everything all right for you.’

“Q. Did he tell you what he had made all right for you? A. No, sir; he did not.”

The learned chancellor entered a decree denying the relief sought. The concluding paragraph of the decree embodies the views and judgment of the chancellor in these words :

“I therefore am of the opinion that it was the intention of the grantor to part with the title at the time of the execution of the deed, and that his delivery of the same to the clerk for recordation, and the lapse of time it was allowed to remain of record before filing of this suit, and the fact that he at no time before the filing of this suit expressed any purpose or desire not to deliver the same, and all the other facts and circumstances, fail to rebut the presumption of delivery raised by the acknowledgment and filing of the deeds for record.

“The decree of the court will be that the bill be dismissed at the cost of complainant.”

It will be seen that the chancellor based his conclusions upon the failure of the appellant to express any purpose or desire not to deiver the deed until he filed this suit. As we view the law, it was incumbent upon the appellee to show that the deed had been delivered before he could hope to succeed. His whole case rested, and rests, upon the presumption of delivery by the recording of the deed. This presumption disappears when it is shown that the deed was never delivered; that it has been in the possession of the appellant ever since it was signed and acknowledged, except the time it was in the possession of the clerk of the chancery court.

Something has been said about the intentions of the parties, whatever that may mean. The intention to do a thing will not suffice. An intention to deliver a deed does not dispense with delivery; there must be an act showing a delivery. The only act proven which tends to show a delivery was the record of the deed. This raised a presumption, but the presumption yields to the fact that the deed was never delivered. It never passed out of his possession or out of his control. There is no dispute about that. Besides, he testified that he never intended to deliver the deed unless he got sick. Evidently he purposely held on to the deed, with a purpose to destroy the same when he regained his health.

The case of Hall v. Barnett, 71 Miss. 41, 14 So. 732, is strikingly similar to the instant case. Aside from the sworn statement of the appellant, the facts of this case strongly suggest that the intention of the appellant was not to deliver the deed, but to destroy it, unless he became satisfied that his death was near.

In the many authorities cited -by the appellees, we find nothing inconsistent with our views of the law of this case. The books are full of cases wherein it is held that the recording of a deed of conveyance raises a presumption of delivery, but no case can be found wherein the presumption thus raised does not yield to the facts.

Reversed and remanded.