84 Kan. 713 | Kan. | 1911
The opinion of the court was delivered by
The substantial controversy is over the question of delivery of the deeds made at Excelsior Springs, Mo. The plaintiff claimed under both deeds—
“Delivery may be effected by words without acts, or by acts without words, or by both acts and words. Whenever it appears that the contract or arrangement between the parties has been so far executed or completed that they must have understood that the grantor had devested himself of title, and that the grantee was invested with it, delivery will be' considered complete, though the instrument itself still remains in the hands of the grantor.” (p. 261.)
(See, also, Ledgerwood v. Gault, 70 Tenn. 643; Standiford v. Standiford, 97 Mo. 231; Douglas et al. v. West, 140 Ill. 455.)
It was for the jury to determine whether it was the intention that the title should pass when the actual deposit of the deeds should be made with Mr. Spilman, or whether it was intended that it should pass pres
The opinion in Worth v. Butler, 83 Kan. 513, is cited as being opposed to these views, but in that case the delivéry depended upon undisputed facts, showing that no delivery had been made and leaving no room for any legitimate inference to the contrary — a situation entirely different from the one now under consideration.
The defendants requested several instructions relative to the Excelsior Springs deeds. So far as these requests embodied correct principles they were sufficiently embraced in the general charge of the court, which clearly stated the rules of law necessary for the information of the jury. Most of the instructions requested, however, declared in effect that the deeds were inoperative for want of delivery. But delivery, as already stated, was a question of fact for the jury.
Objection was made to the oral testimony relative to the proposed plan for division of the land, afterward consummated by the deeds. This evidence was properly received to show the intention of the parties and as part of the history of the transaction. Even if erroneously received, no prejudice resulted. Without separately discussing each of the assignments of error it is held that the petition stated a good cause of action; that the evidence was sufficient to sustain the verdict and special findings; and that no prejudicial error is shown.
The judgment is affirmed.