Ballard v. Ballard
| Decision Date | 28 September 1949 |
| Docket Number | 107 |
| Parties | BALLARD v. BALLARD et al. |
| Court | North Carolina Supreme Court |
Certain events preceding this judicial contest are not in dispute. They are set forth chronologically in the next four paragraphs.
On January 28, 1914, J. T. Ballard was a widower with two children: Sherman M. Ballard and Callie Roachester. Prior to that date he acquired title in fee simple to 71 acres of mountain land near his home in Middle Fork Township in Madison County. The tract was in the main heavily timbered, but contained some arable clearings.
Sometime in 1914, J. T. Ballard, who had had experience as a magistrate, drafted, signed, and sealed a certain written instrument, which he dated January 28, 1914. This document was in form a warranty deed based on a valuable consideration of $100.00 and purported to convey 61 acres out of the 71 acre tract to Sherman M. Ballard in fee, subject, however, to a term of 21 years reserved by J. T. Ballard. It bore a certificate of acknowledgment in the customary form reciting that on January 28, 1914, J. T. Ballard 'acknowledged the due execution of the * * * deed' before W. L. Hensley, a justice of the peace of Madison County, and was recorded in the office of the Register of Deeds of Madison County on December 16, 1914, pursuant to an order of registration which was made on December 15, 1914, by W. A. West, Clerk of the Superior Court of Madison County, and which adjudged the certificate of W. L. Hensley, a justice of the peace of Madison County * * * to be in due form and according to law. ' The writing expressly stipulated that J. T Ballard had 'the right to pay the taxes' on the 61 acres.
On August 24, 1920, J. T. Ballard contracted a second marriage with the plaintiff, Arminda Ballard, and had by her one child, Arthur Ballard.
In 1930, Sherman M. Ballard fled North Carolina to escape prosecution for willfully abandoning his wife, Matilda Ballard, without providing an adequate support for her and the four small children he had begotten upon her, and since that time his whereabouts have been unknown. J. T. Ballard died intestate February 4, 1941.
This litigation began on November 21, 1946, when Arminda Ballard filed a petition against Arthur Ballard, Sherman M. Ballard Callie Roachester, and Levi G. Buckner in the Superior Court of Madison County, asking that dower be assigned to her in the entire 71 acre tract in her capacity as widow of J. T Ballard. Personal service was had on all persons designated as defendants except Sherman M. Ballard, and service by publication was ostensibly obtained as to him on the theory that he was a living nonresident.
No pleadings were filed in the names of Arthur Ballard or Sherman M. Ballard. Callie Roachester answered, asserting that she and Arthur Ballard and Sherman M. Ballard owned the entire 71 acre tract as tenants in common, subject, however, to the dower right claimed by plaintiff. The defendant, Levi G. Buckner, who was made a party to the proceeding as a person claiming an estate in the land, filed an answer pleading sole seizin of a portion of the 71 acre tract, i. e., the 61 acres described in the written instrument bearing date January 28, 1914. The proceeding was transferred to the court at term for trial by jury of the issue of title to the 61 acres raised by the plea of the defendant, Levi G. Buckner.
When the case was tried, the defendant, Levi G. Buckner, claimed that he had owned the 61 acres in fee simple since February 10, 1944, under mesne conveyances from Sherman M. Ballard, the person named as grantee in the writing dated January 28, 1914, and introduced documentary evidence sufficient in form to sustain his position in this respect. Besides, he presented testimony indicating that subsequent to the date of the instrument in controversy J. T. Ballard declared he had transferred the 61 acres to Sherman M. Ballard, and that the latter had manifested his acceptance of the transfer by executing a conveyance of the interest which the instrument purported to vest in him.
The plaintiff attacked the validity of the claim of title advanced by the defendant, Levi G. Buckner, on the theory that there had been no delivery of the alleged deed of January 28, 1914. The plaintiff offered evidence tending to show that J. T. Ballard had possession of the instrument in question after the date of its registration, and that he cultivated the lands therein described, and paid the taxes thereon until he died. Although it did not appear that the plaintiff had had any opportunity to acquire any personal knowledge of the affairs of J. T. Ballard or Sherman M. Ballard prior to her marriage to the former on August 24, 1920, she testified in person that the in controversy did not exist until eleven months after the date of its purported execution and acknowledgment; that Sherman M. Ballard did not pay J. T. Ballard $100.00 for the 61 acres as recited in the instrument; that Sherman M. Ballard never saw the instrument; and that the instrument 'was never delivered' to Sherman M. Ballard by J. T. Ballard. The defendant, Levi G. Buckner, challenged the admissibility of this evidence by objections and motions to strike, and reserved exceptions to adverse rulings thereon. The plaintiff was also permitted to state that she knew the handwritings of J. T. Ballard and W. L. Hensley, and that the signature on the certificate of acknowledgment purporting to be that of W. L. Hensley was in the handwriting of J. T. Ballard rather than that of W. L. Hensley.
Issues were submitted to and answered by the jury as follows:
1. Is the petitioner, Mrs. Arminda Ballard, the widow of J. T. Ballard? Answer: Yes.
2. Was the alleged deed from J. T. Ballard to Sherman Ballard acknowledged by J. T. Ballard? Answer: No.
3. If so, was said alleged deed delivered by J. T. Ballard to Sherman Ballard? Answer: No.
The court entered judgment on the verdict adjudging that the plaintiff was entitled to dower in all portions of the 71 acre tract, including the 61 acres described in the alleged deed of January 28, 1914, from J. T. Ballard to Sherman M. Ballard; that such alleged deed was void; and that the 61 acres described therein belonged to Arthur Ballard, Callie Roachester, and the defendant, Levi J. Backner, in equal shares as tenants in common, subject to the dower of the plaintiff.
The defendant, Levi G. Buckner, excepted to the provisions of the judgment relating to the 61 acres and the alleged deed of January 28, 1914, and appealed therefrom to this Court, assigning errors.
J. M. Baley, Jr., Marshall, and W. E. Anglin, Burnsville, for the plaintiff, appellee.
C. P. Randolph, Burnsville, for defendant Callie Roachester, appellee.
Calvin R. Edney, Marshall, and J. W. Haynes, Asheville, for defendant.
Levi G. Buckner, appellant.
The word 'deed' ordinarily denotes an instrument in writing signed, sealed, and delivered by the grantor, whereby an interest in realty is transferred from the grantor to the grantee. Strain v. Fitzgerald, 128 N.C. 396, 38 S.E. 929; Fisher v. Pender, 52 N.C. 483. The requisites to the valid delivery of a deed are threefold. They are: (1) An intention on the part of the grantor to give the instrument legal effect according to its purport and tenor; (2) the evidencing of such intention by some word or act disclosing that the grantor has put the instrument beyond his legal control, though not necessarily beyond his physical control; and (3) acquiescence by the grantee in such intention. Blades v. Wilmington Trust Co., 207 N.C. 771, 178 S.E. 565; Burton v. Peace, 206 N.C. 99, 173 S.E. 4; Gulley v. Smith, 203 N.C. 274, 165 S.E. 710; Gillespie v. Gillespie, 187 N.C. 40, 120 S.E. 822; Rogers v. Jones, 172 N.C. 156, 90 S.E. 117; Lynch v. Johnson, 171 N.C. 611, 89 S.E. 61; Lee v. Parker, 171 N.C. 144, 88 S.E. 217; Butler v. Butler, 169 N.C. 584, 86 S.E. 507, Ann.Cas.1918E, 638; Huddleston v. Hardy, 164 N.C. 210, 80 S.E. 158; Gaylord v. Gaylord, 150 N.C. 222, 63 S.E. 1028; Fortune v. Hunt, 149 N.C. 358, 63 S.E. 82; Smith v. Moore, 149 N.C. 185, 62 S.E. 892, rehearing denied 150 N.C. 158, 63 S.E. 735; Tarlton v. Griggs, 131 N.C. 216, 42 S.E. 591; Bailey v. Bailey, 52 N.C. 44; Gibson v. Partee, 19 N.C. 530; Kirk v. Turner, 16 N.C. 14; Moore v. Collins, 15 N.C. 384; Morrow v. Williams, 14 N.C. 263; Ward's Executors v. Ward, 3 N.C. 226. But manual possession of the instrument by the grantee is not essential to delivery. It is sufficient if the grantor delivers the writing to some third person for the grantee's benefit. McMahan v. Hensley, 178 N.C. 587, 101 S.E. 210; Buchanan v. Clark, 164 N.C. 56, 80 S.E. 424; Barnett v. Barnett, 54 N.C. 221; Wesson v. Stephens, 37 N.C. 557, 559; Gaskill v. King, 34 N.C. 211; Morrow v. Alexander, 24 N.C. 388. Thus, there is an effective delivery where the grantor causes the written instrument to be recorded, or leaves it with the proper officer for recording with the intention that it thereby shall pass title to the grantee according to its purport and tenor, and the act of the grantor is accompanied or followed by the assent of the grantee. Robbins v. Rascoe, 120 N.C. 79, 26 S.E. 807, 38 L.R.A. 238, 58 Am.St.Rep. 774; Phillips v. Houston, 50 N.C. 302; Ellington v. Currie, 40 N.C. 21; Snider v. Lackenour, 37 N.C. 360, 38 Am.Dec. 685. In such cases, assent on the part of the grantee is presumed until the contrary is shown if the conveyance be beneficial to him. This is so although the transaction occurs without the grantee's knowledge. Buchanan v. Clark, supra; Tate v. Tate, 21 N.C. 22; 16 Am.Jur., Deeds, section 389.
The legal battle at the trial was waged around the crucial question of whether the alleged deed of January 28, 1914, had been delivered to Sherman...
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