Skipper v. Holloway
67 So. 991
Ala.
1915
Check Treatment
SOMERVILLE, J.

(1) It is thoroughly well settled in this state that the mere filing of a deed for record by the grantor is prima facie a delivery of the deed to the grantee; and, if the deed is beneficial to the grantee, and imposes no burden upon him, his acceptance is presumed, even though he had, in fact, no knowlof the existence of the deed.—Gulf Red Cedar Co. v. Crenshaw, 169 Ala. 606, 53 South. 812, and cases therein cited.

(2) But the legal presumption of delivery in such a case may be defeated by competent and satisfactory evidence that the grantor did not intend by the act of filing to effectuate a delivery of the deed. Whether or not the grantor’s prompt reclamation and subsequent retention of the deed in his own hands, without any recognition of its operation as a conveyance, may suffice for this purpose, has been mooted, but not determined by our decisions.

In Elsberry v. Boykin, 65 Ala. 336, 341, and again in Fitzpatrick v. Brigman, 130 Ala. 450, 456, 30 South. 502, it was said—apparently as obiter dictum in each case—that: “If it is duly acknowledged and recorded, the presumption of delivery attaches, which can be repelled only by evidence of actual dissent of the grantee.” (Italics ours.)

In Alexander v. Alexander, 71 Ala. 295, 298, it was said: “The testimony equally shows that, when the deed *193was acknowledged and certified, * * * the grantor took possession of it himself, sent it'to the registration office, and directed that, when recorded, it should be returned to him, and it was done. If it were necessary for the decision of this case, it may present a question o'f grave inquiry whether this fourth fact does not overturn the prima facie presumption of delivery which would otherwise arise out of the first three enumerated facts. Does it not (unexplained so far as this record informs us) show there was, in fact, no delivery at that time?”

In Wells v. Am. Mort. Co., 109 Ala. 430, 443, 20 South. 136, 141, it was said: “But when a deed is executed with all the formalities essential to perfect it, when grantor and grantee join in its execution, the grantee thereby manifesting acceptance of it, when the execution is acknowledged before an officer having authority, * * and it is spread upon the public records as notice to all the world of its existence, if the fact of delivery he disputable, the evidence controverting it must be clear and convincing; it must appear that there was not, in fact, delivery, and that at the time of execution it was so understood.”

It is observed, however, that the presence and joinder of the grantee in the execution of the deed differentiates the Wells Case from the others.

Finally, in Gulf Red Cedar Co. v. Crenshaw, 169 Ala. 606, 613-615, 53 South. 812, 814, it was said: “Of course, registration of the deed is not conclusive evidence of a delivery, and it may he refuted by other evidence. The fact of delivery rests upon intention, and is to be collected from all the acts and declarations of the parties having relation to it. * * * The fact [of the grantor’s reclamation and control of the deed after registration] might afford an inference that the registrá*194tion was not intended as a delivery, and would make it a question for the jury, in an action at law, in the ordinary case, as indicated in the quaere in Alexander v. Alexander, supra»; hut this cannot be considered as an ordinary case, as the grantees were not sui juris'.'”

(3) Conceding, without deciding, that the facts shown with respect to the grantor’s registration and subsequent reclamation and custody of this deed may be sufficient to overcome the initial presumption of an intended delivery; yet, as the facts are equivocal on their face, the bill ought to clearly and directly charge the required conclusion, viz., that the grantor did not intend to deliver, and did not, in fact, deliver the deed to the grantees named.—Norton v. Randolph, 176 Ala. 381, 58 South. 283, 40 L. R. A. (N. S.) 129. A special demurrer pointing out this omission would doubtless have been well taken. But the equity of the bill is amply sustained by the facts recited, in connection with the allegations of paragraph 5 that the respondents acquired no rights under the deed.

The bill is one for the cancellation of a cloud on complainant’s title, and not for the quieting of an adverse claim under the code proceeding.

The general demurrer was properly overruled, and the decree of the chancellor will be affirmed.

Affirmed.

. Anderson, C. J., and Mayfield and Thomas, JJ., concur.