29 N.C. App. 312 | N.C. Ct. App. | 1976
Plaintiff contends in this appeal that the court erred in directing a verdict for defendants. She maintains that there was evidence from which the jury could have found that the deeds were deeds of gift. Moreover, she asserts that there was evidence that the deeds were not validly delivered because decedent never released power and control over the deeds. Plaintiff’s arguments have merit.
In a jury trial a motion for directed verdict by defendant presents the question of whether the evidence, considered in the light most favorable to plaintiff, will justify a verdict for plaintiff. Rayfield v. Clark, 283 N.C. 362, 196 S.E. 2d 197 (1973) ; McCoy v. Dowdy, 16 N.C. App. 242, 192 S.E. 2d 81 (1972).
When the plaintiff’s evidence is considered in the light most favorable to her it tends to show the following:
Plaintiff testified that prior to decedent’s death none of the grantees [defendants] ever saw the deeds in question. The deeds recited that they were supported by consideration, but neither of the grantees paid anything for the land purportedly conveyed by the deeds. Plaintiff did testify that defendants furnished personal services to decedent before and after execution of the deeds, but there was no evidence that such services were furnished as consideration for the deeds.
W. S. Bogle, attorney for decedent, testified that he prepared the deeds for decedent who told him to keep the deeds until decedent’s death and then deliver them to the grantees. Bogle also stated that if the decedent had ever requested him to change the deeds, “I imagine I would have but I don’t know.” Bogle also testified that “I did whatever he instructed me to do” and that “I would have done what he wanted with these deeds to comply with his wishes.”
Pursuant to G.S. 47-26 all deeds of gift have to be recorded within two years or they become void. The three deeds in ques
With respect to whether there is a valid delivery of a deed there are three requirements: (1) an intention by the grantor to give the instrument legal effect according to its purport and tenor; (2) evidence of that intention by some word or act which discloses that the grantor put the instrument beyond his legal control; and (3) acquiescence by the grantees in such intention. Jones v. Saunders, 254 N.C. 644, 650, 119 S.E. 2d 789 (1961) [Emphasis added].
Testimony by W. S. Bogle, grantor’s attorney, would certainly justify a reasonable inference that the grantor retained ultimate control over the deeds until his death. “So long as a deed is within the control and subject to the authority of the grantor there is no delivery, without which there can be no deed.” Fortune v. Hunt, 149 N.C. 358, 361, 63 S.E. 82 (1908).
In addition to introducing into evidence the three deeds from decedent to the defendants, plaintiff attempted to introduce four other deeds from decedent. She contends that the deeds were admissible to show decedent’s intent to dispose of his real property after his death by delivering to Bogle deeds for all the property he owned, thereby allowing the deeds to substitute as a will.
“In construing a deed and determining the intention of the parties, ordinarily the intention must be gathered from the language of the deed itself when its terms are unambiguous. However, there are instances in which consideration should be given to the instruments made contemporaneously therewith, the circumstances attending the execution of the deed, and to the situation of the parties at the time.” Smith v. Smith, 249 N.C. 669, 675, 107 S.E. 2d 530 (1959). All deeds constituting a “simultaneous transaction” may be construed together in determining the intent and effect of one of the deeds. Combs v. Combs, 273 N.C. 462, 160 S.E. 2d 308 (1968).
The three deeds to defendants which were admitted into evidence were executed on 9 June 1971, and 13 July 1971, while the four deeds not admitted into evidence were executed 13 July
Plaintiff’s evidence presented a case for the jury. The judgment directing verdict for defendants is
Reversed.