McMILLAN v. GibsonMcMILLAN v. Gibson
W. J. Wyatt owned 360 acres of land on which he and his wife lived. Wyatt was about 67 years old in 1940; his wife was 66. Prior to January 29, 1940, Wyatt had two deeds prepared, one in which the appellant, Mrs. McMillan, was grantee to 320 acres of his land, and one in which the appellee, Mrs. Gibson, was grantee to 40 acres. Mrs. McMillan and Mrs. Gibson were the married daughters of Wyatt and his wife, being the only children; both daughters had their own homes and families. ' Both of the deeds retained a life estate to Wyatt and his wife
Although not important to our decision, we here note that there were two matters that doubtless motivated Wyatt in making the deeds. One was the fact that he had rendered some assistance to Mrs. Gibson and her husband in acquiring a home; the other was that Wyatt and Mrs. Gibson’s husband had disagreed on some political matters that resulted in some degree of estrangement between the Wyatts and the Gibsons.
We hold that the act of the grantor, Wyatt, in handing the deed to Mrs. McMillan without any conditions attached, the subsequent recording of the deed, and Wyatt’s failure to challenge the validity of the deed until his death thirteen years later, constituted sufficient proof of delivery. Whether either one of these acts, standing alone, would constitute delivery we need not here decide. Delivery is largely a matter of intention of the grantor. Hall v. Barnett, et al,
The recording of the deed raises a presumption of delivery. 26 C. J. S. 598. But this is a rebuttable presumption which disappears when it is shown that the deed was never delivered. Graham v. Graham,
Lynch v. Lynch,
The only fact in this case that would tend to overcome the proof of manual delivery and rebut the presumption of delivery arising from the recordation of the deed is the fact that Mrs. McMillan handed the deed back to Wyatt, who, after having it recorded, kept the deed until his death. Where a deed which has been duly signed and acknowledged is subsequently found in possession of the grantor, a presumption arises that it was never delivered. 26 C. J. S. 593. But the courts generally recognize an exception to this rule, as where the grantor has reserved an interest in the property. 26 C. J. S. 594. Moreover, Wyatt’s deed being a voluntary settlement, and the rights of creditors or subsequent purchasers not being involved, the mere fact of the grantor retaining possession of the instrument does not render it invalid for want of delivery, if he intended that it should be delivered. Wall, et al v. Wall, Exec.,
After Wyatt’s death, and before his wife died, the wife said to her daughters that Wyatt had intended to change the deeds, but death overtook him before he could do so. This testimony was admitted without ob
The chancellor was in error in his conclusions of law on the question of delivery of the deed.
The appellee filed a cross appeal which raises the question whether the deed to appellant was testamentary in character and invalid as a deed of conveyance. The deed was in the usual words and form of a deed in fee simple but contained the following paragraph: “It is hereby agreed and understood that the grantors herein reserve the rights, use, control and benefits from the above described lands during our natural lifetimes. Deed thereto to take affect at our deaths.”
The question here involved has been the subject of much litigation and many cases are reported from our jurisdiction. The cases turn upon a great variety of words contained in the instruments, but they are in agreement that if the instrument appears on its face to have no effect until the death of the grantor, then it is testamentary in character and not valid as a deed, even though it be in the form of a deed. Mims, et al v. Williams, et al,
The words of the instrument here, involved reserved a life estate. Then followed the sentence, “Deed thereto to take effect at our deaths.” The word “thereto” is used as a word of reference. The antecedent provision to which “thereto” refers is “the rights, use, control and benefits from the above described lands.” Substituting the antecedent provision for the reference word “thereto,” the last sentence of the quoted paragraph of the instrument would read: “Deed to the rights, use, control and benefits from the above described lands to take effect at our deaths.” It is unmistakably clear that it was the life estate, the enjoyment of which was postponed until death of grantors. The paragraph in question did not deal with the title to the lands.
The chancellor correctly held that the instrument was a deed.
Reversed on direct appeal and judgment here for appellant; affirmed on cross appeal.