Baldwin v. Maultsby

• Decision Date: 30 June 1845
• Citation: 5 Ired. 505,27 N.C. 505
• Court: North Carolina Supreme Court
• Parties: CHARLES BALDWIN v. JOSIAH MAULTSBY.

5 Ired. 505

27 N.C. 505

CHARLES BALDWIN

v.JOSIAH MAULTSBY.

Supreme Court of North Carolina.

June Term, 1845.

A. signed and sealed a deed conveying certain slaves to B.-- called upon witnesses to attest it, and acknowledged that it was his act and deed--the deed was left on the table and was not again seen until after A.'s death, about a month after this transaction, when it was found in A.'s trunk with his valuable papers--A. had previously said he intended to give this property to B. and just before his death said, “he was satisfied with the way he had disposed of the negroes, the deed of gift was in his trunk and he wished it delivered to B. immediately after his death.” Held, that these circumstances did not constitute a delivery of the deed, nor even afford any evidence tending to shew a delivery, which could be submitted to a jury.

Where there has been no delivery in the lifetime of the grantor, a delivery after his death, though at his request, is void.

The case of Moore v. Collins, 4 Dev. 384, cited and approved.

Appeal from the Superior Court of Law of Columbus county, at the Spring Term, 1845, his Honor Judge PEARSON presiding.

This was an action of trover for six slaves. The defendant admitted the conversion, and the only question was, whether Warren Baldwin, under whom both parties claimed, had duly executed a deed of gift to the plaintiff.

To prove the execution of the paper, the plaintiff called one Toon, who swore, that on the 21st of November, 1842, the day the paper bears date, at the house of the said Warren Baldwin, he was asked by Baldwin to become one of the subscribing witnesses to the paper, which had been previously drawn by one Wooten and was lying on the table; he assented; Baldwin then signed his name, the seal being already made, and got up to make room for the witness. The witness said to Baldwin, “do you do this as your act and deed?” Baldwin replied, “I do.” Whereupon, the witness signed his name as a witness, and left the paper on the table. The other subscribing witness then signed his name, the paper was left on the table, and the witness did not see it again until after Baldwin's death, when it was found in a trunk with Baldwin's deeds for land and other papers. Wooten swore, that Baldwin requested him to write a deed of gift for the negroes, saying that these negroes had come by his wife, and he had promised her to leave them to her brothers and sisters. The plaintiffs were his brothers and sisters. The witness accordingly wrote the paper. After Baldwin had signed it and Toon had become a witness, he also put his name as a witness, folded it up, and wrote on the back, “Warren Baldwin to Charles Baldwin and others--Deed of Gift,” and dropped it on the table. He and Toon went away, leaving it on the table. He next saw the paper in Baldwin's trunk, after his death, which was on the 20th of December, 1842. After Baldwin signed his name, he did not touch the paper in the presence of the witness. It remained all the time on the table, except while the witness was folding it. Neither of the plaintiffs was present. One Mithian swore, that, a short time before the death of Baldwin, in speaking about his property, he said, “I am satisfied with the way I have disposed of the negroes; the deed of gift is in my trunk, and I wish you to deliver it to Charles Baldwin, immediately after my death.” One Taylor swore, that Baldwin said to him, talking about his property, some short time before his death, “I have given the negroes, which came by my wife, by a deed of gift to her brothers and sisters, and did it by deed of gift to keep any fuss from being made after my death, and I wish them to take possession of the negroes at my death.” The defendant offered no evidence, but moved the Court to charge the jury, that there was no evidence of a delivery of the paper.

The Court charged, that, to constitute a delivery, the law required the maker of a deed to part with the possession, by passing it to the donee or some other person, with an intent to make it his deed. If the maker thus parted with the possession for an instant, although he then tood it back, still having made it his deed, it would remain so. But unless he did so part with the possession of the paper, an essential ingredient to constitute a deed was wanting; and although the jury were satisfied, that Mr. Baldwin was under the impression that the paper would be sufficient to pass the negroes after his death, as a deed of gift, yet, if, in point of fact, the paper had not been delivered so as to become his deed, the title did not pass to the plaintiff, and the defendant was entitled to their verdict. The plaintiff's counsel moved the Court to charge the jury that there was evidence, from which the jury might infer a delivery. The Court declined so to charge, but, on the contrary, instructed the jury, that it was necessary they should be satisfied from the evidence, that Baldwin had, at least for an instant, parted with the possession of the paper and put it out of his control, with the intent that it should thereby become his deed; otherwise there would not be such a delivery as the law required.

There was a verdict for the defendant, and, judgment being rendered accordingly, the plaintiff appealed.

Strange for the plaintiff :

1st. Question of delivery. In Wesson v. Stephens, 2 Ire. Eq. 557, it is decided that delivery to a stranger for another, is a sufficient delivery; and in one view of this case, that is quite sufficient for our purpose. But there are some others in which it is not, and I would here remark, that, in the case of Wesson v. Stephens, the case of Knight v. Garnons, 1 Barn. & Cress. 671, is cited with approbation, and Judge BAILEY, in that case, goes the full length that we could possibly desire, in any view of this, saying and proving by an array of strong authority, that a deed will operate though it is never parted with by him who executes it. I gather from the authorities that delivery means nothing more than some act shewing that the grantor considers the instrument complete, and that an act is done by him which he considers binding and obligatory as his deed. Many strong cases are collected in the American Ed. of Comyn's Dig. Title Fait. A. 3, 4, especially Shelton's case, Cro. El. 7, where the grantor signed and sealed the deed in the presence of the grantee, leaving it on the table, but the grantee did not take it; but, both the grantor and grantee departing, it was left behind them in the same place, it was held a delivery. The case of Jacques v. Meth. Ep. Church, 17 John. Rep. 548, is a strong case--there the deed was in the hands of a trustee, but had never in fact been delivered to him nor to any one for him, but being left on the table was taken up by the cestui que trust, and it was held that the repeated acknowledgements of the grantee that he had made such a deed were sufficient, although there was direct proof that there was no delivery in fact--this case is precisely in point for one view of our case. In King v. Cotton, 3 P. Wms. 358, it was held, that where a woman, on the eve of marriage, makes a conveyance, which she keeps in her own possession, if got out of it against her will, does not bind her, otherwise it doth. See also Hengoor's case, 9 Co. Rep. 136. The case of Clavering v. Clavering, 2 Barn. Rep. 473, is particularly strong, for there the deed was held valid though never parted with by the grantor; and Lady Hudson's case there cited, is to the same purport. In Hare v. Horton, 5 Barn. & Ad. 715, it is held that possession by the grantee is prima facie evidence of delivery. The case of Lloyd v. Bennett, 8 Carr. & Payne 124, is much like this in many particulars, and there the deed was sustained. In Goodtitle v. Walker, 1 John. Cases 250, it is held that a formal delivery of a release is not necessary, if such acts appear as shew an intention to deliver, and to the same purport is Fitch & Burke v. Foreman, 14 John. Rep. 172. The case of Verplank v. Sary, 12 John. 212, goes somewhat to strengthen the position, also the case of Souverbye v. Arden, 1 John. Ch. 240. The case of Burling v. Patterson, 9 Carr. & Payne, 570, shews that the Courts incline very much to presume a delivery in support of a manifest intent and to the same point is Ball...