149 Ala. 325 | Ala. | 1906
This was a suit by the appellees (plaintiffs), in the nature of an action of ejectment, to recover an undivided interest in certain lands formerly belonging to J. J. GrisAvold, the ancestor of both plaintiffs and defendants. The plaintiffs claimed as heirs at law of said J. J. Griswold, and the defendants claimed under the paper set out in the record, being Exhibit A to the deposition of George S .Rotten.
The paper marked “Exhibit A” is in form a deed, and has nothing in it to indicate that it was intended as a will. The evidence is clear and uncontradicted that it was delivered by J. J. Griswold to his daughter, the appellant, Susan Griswold Strickland, with instructions to her to deliver it and the other deed to the proper parties at the death of J. J. Griswold. “The delivery of a deed by the grantor to a third person, to be held by him and delivered by the grantee, upon the grantor’s death, will operate as a valid delivery, where there is no reservation, on the part of the latter, of any control over the instrument.”- — 13 Cyc. 569; Owen v. Williams, 114 Ind. 179, 15 N. E. 678, 684; Stout v. Rayl, 146 Ind. 379, 45 N. E. 515, 517. In the case last cited the court reviews several cases, and declares that such a deed takes effect from the instant of delivery, and, quoting from 3 Wash-burn on Real Property, (5th Ed.) pp. 319, 320, draws the distinction between such a deed, which depends merely upon the lapse of time for its delivery, and an escrow, which is dependent upon the performance of some condition, Avhich may not be done. — Page 517. In our own court, in a case where the grantor delivered a deed, conveying lands to his minor children, to his wife, telling her to look after the children if he died first, and that he would look after them if she died first, it was held that the title passed eo instante. — Arrington v. Arrington, 122 Ala. 510, 26 South. 152; Williams v. Higgins, 69 Ala. 517; Abney v. Moore, 106 Ala. 131, 18 South. 60.
Even if such a delivery could be denominated an escrow, it is “firmly established that a deed cannot be
Justice Haralson and the writer are of the opinion that the court also erred in refusing to give the general charge in favor of the defendant; but the other members of the court hold that it was a question to be' submitted to the jury whether or not the deed was delivered to the appellant Susan M. Strickland. — Griswold v. Griswold, 148 Ala. 239, 42 South. 554.