94 Ala. 629 | Ala. | 1891
— When this case was before the court at a former term, it was held that a conveyance of the homestead, in all respects effectual for that purpose, except that it was not acknowledged by the wife as required by law, was a nullity; and that a proper acknowledgment made by the wife after the death of the husband did not defeat or affect the title of the heirs. This conclusion necessarily resulted from well settled principles of law as declared by repeated decisions of this court, and many of them being referred to in the opinion. Richardson v. Woodstock Iron Co., 90 Ala. 268.
The question presented on this appeal was not considered in that opinion, and could not have arisen from the evidence as then stated in the record. The undisputed facts as they appear in the present record show, that the instrument was signed and dated and properly attested by two witnesses, but not acknowledged by the wife in the manner required by law for the conveyance of a homestead, a few days prior to the delivery to the grantee; that at the time it was signed, dated and attested, the grantor and his wife occupied as a homestead the land described in the instrument. The testimony further shows, that at that time the husband and owner of the land contemplated, and was preparing to change his homestead, and a few days thereafter actually removed and occupied another and different place as his homestead. The evidence further shows, that prior to his removal the grantor and grantee were negotiating for the sale and purchase of the land then occupied as a homestead, and in pursuance of the understanding between them the instrument was prepared, signed, dated, and duly attested, as above stated. The evidence further shows that the grantor retained the instrument in his own
“Delivery is essential to give effect to a deed, . .. and though signed, attested, or acknowledged, so long as the grantor retains control over it, so long as he does not part with it, with the purpose that it shall enure to the grantee, title will not pass from him.” — Jenkins v. Harrison, 66 Ala. 356; Elsberry v. Boykin, 65 Ala. 340. A deed, or other writing, only takes effect from its delivery. — Stiles v. Brown, 16 Vt. 565. A deed duly signed and dated, but delivered at a subsequent dale, takes effect only from the date of delivery, and the delivery can not relate back, so as to vest title from the date of the deed. — Mitchell v. Bartlett, 51 N. Y. 453. Notwithstanding there is a written date, the true date may be shown by extraneous evidence, even in the most solemn instruments, as deeds under seal. — Lee v. Marine Ins. Co., 6 Mass. 219. The deed only takes effect from the actual time of its delivery, and the actual date of delivery will always control the date mentioned in the deed. — Tiedeman on Real Property, § 812; Smith v. Porter, 10 Gray, 66; Newlin v. Osborne, 67 Amer. Dec. 269. Acceptance by the grantee is essential to pass title from the grantor, and to the validity of the deed. — Tiedeman, supra, § 814; 66 Ala. 356. The writing and signing a note on Sunday is not the execution of it on that day, unless it be delivered on that day to the payee; delivery being essential to make it operative as a contract. If delivered on a subsequent day, not Sunday, it takes effect as a valid instrument from the day of delivery. — Flanagan v. Meyer, 41 Ala. 135.
It is legally impossible to have two homesteads at the same time. — Boyle v. Shulman, 59 Ala. 569. If the wife had died after the husband acquired a new homestead, and before the delivery of the deed, according to all the principles of law cited in the foregoing authorities, the deed took effect from the day of its delivery.
The principle involved in the present appeal is vitally different from that adjudicated on the former appeal. Under the facts stated, we do not doubt the purchaser received a good title.
Reversed and remanded.