| Ark. | Mar 27, 1911
(after stating the facts). It is not necessary to determine whether or not the court erred in finding that appellant had induced appellee to sign the deed through misrepresentation and deceit, or by undue influence over her, for we are of the opinion that the evidence does not show that the deed was delivered to appellant, and therefore the judgment of the court cancelling the deed must be affirmed.
The testimony of appellant and appellee shows clearly that it was not the intention of either that the deed should be delivered to appellant so as to give him the control over the deed and to at once pass the title to him. According to the testimony of appellant his mother was to place the deed where he could get it if anything happened to her. This evidently means that the deed was to be placed where appellant could get it when his mother died. The place designated was “the little black tin box of hers.” He could get it there. But, according to his own •testimony, it was “where he could get it if anything happened to her.” According to the testimony of appellee, she expected Mr. Cole to hand the deed to appellant, and that he would bring it to her; “she thought she could have destroyed'it” if she changed her mind. Her testimony shows that she expected, after the deed was made, to have absolute dominion over it. When therefore appellee made the deed and left it with Cole to be delivered, as he says, to appellant, it was for the purpose of allowing appellant to look over it to see whether it would suit him or not (as she had made some changes in it), and then he (appellant) was to bring it home to her. The recording of the deed by appellant was wholly unauthorized. It was not the intention of the grantor to give him any control over the deed to malee it operate as a conveyance of title to him.
This is the only conclusion warranted by the evidence. This is the only conclusion that will give effect to the testimony of all the witnesses and make the testimony of all consistent.
There is no delivery unless what is said and done by the grantor and grantee manifests their intention that the deed shall at once become operative to pass the title to the land conveyed, and that the grantor shall lose dominion over the deed. Creighton v. Roe, 109 Am. St. Rep. 310; Byars v. Spencer, 40 Am. Rep. 212; 13 Cyc. 748, f. note 56; 9 Am. & Eng. Ency. Raw, p. 154; Russell v. May, 77 Ark. 90; Cribbs v. Walker, 74 Ark. 104" date_filed="1905-01-28" court="Ark." case_name="Cribbs v. Walker">74 Ark. 104. In the last case supra, it was held that the facts showed an intention on the part of the grantor to deliver the deed. No such intention is shown here.
The decree is therefore affirmed.