Campbell v. Fox.

• Decision Date: 20 December 1910
• Parties: Campbell v. Fox.
• Court: West Virginia Supreme Court

68 W.Va. 484

Campbell

v.Fox.

Supreme Court of Appeals of West Virginia.

Submitted January 25, 1910.

Decided December 20, 1910

.

Deeds Delivery Acceptance.

A deed must be both delivered and accepted to operate as a deed.

Appeal from Circuit Court, Kanawha County. Bill by John T. Campbell against Frances L. Fox and others. Decree for defendants, and plaintiff appeals.

Affirmed.

W. S. Laidley, for appellant.

U. S. Albertson, for appellees.

Brannon, Judge:

Delilah Campbell, an aged woman, in April, 1905, executed a conveyance to her son, William M. Campbell, for a tract of 501/2 acres of land. She went to live at her son William's, and while there made this deed, its consideration being that William would support her during life. It may be that Barbara Campbell, William M. Campbell's wife, was a grantee in the deed. Some two or three weeks after the said deed was made Delilah Campbell got possession of it from her son William and burned it. Later Delilah Campbell sold the land to Frances L. Fox for $100 and made her a deed therefor. A little later William M. Campbell and Barbara, his wife, and Delilah Campbell conveyed this land to another of Delilah Campbell's sons, John T. Campbell. John T. Campbell is in possession of the land, and he brought a suit in chancery in Kanawha county against Frances L. Fox to annul and declare void the deed from Delilah Campbell to Frances L. Fox. Frances L. Fox and her husband filed an answer denying the claim of the plaintiff, denying that Delilah Campbell had ever conveyed the land to William M. Campbell, and setting up the right of Frances L. Fox to the land under her deed, and denying that the alleged deed from Delilah Campbell to William M. Campbell was ever completed by delivery, and asking that the.said deed from William M. to John T. Campbell be cancelled. A decree was pronounced dismissing the bill of John T. Campbell and decreeing that the deed from Wiliam M. Campbell and wife and Delilah Campbell to John T. Campbell be declared null and void as against Frances L. Fox. From that decree John T. Campbell appeals.

Counsel relies as a material point in the case upon the legal principle that when once a deed has been made, delivered and accepted the destruction of the deed does not destroy the legal title of the grantee or revest it in the grantor. Such is the law, but this case presents, before we can apply that principle, the question whether the deed from Delilah Campbell to William M. Campbell was finally delivered and accepted. This, of course, depends on oral evidence. The circuit court has found that it was not so delivered and accepted, and before we can reverse this decision we must be well satisfied that it is wrong. The burden of proof is on the plaintiff as to this matter. On that evidence we have too much doubt to overthrow the decree below. Indeed, we think the evidence is insufficient to establish the finality of the deed. It is true there is a legal principle that when parties meet to make a deed and read, sign and acknowledge it without reservation, this, as a general rule, amounts to delivery. Delivery is complete when there is intention manifested to make the instrument the grantor's deed. Glade Coal Mining Co. v. Hams, 65 W. Va. 152. But that case says that delivery is always a question of intention to be determined by the facts and circumstances attending its execution. One reading the evidence in this case must have doubt of delivery. The parties lived in the same house. William M. Campbell did not put the deed on record. It was put in a trunk in the house. It is not definite whose trunk it was, but likely it belonged to the wdfe of William M. Campbell. The fact that it was not put on record is a circumstance indicating that Campbell did not intend to accept it and assume the burden of his mother's support. He himself says as a witness that his mother on several occasions when neighbors came in would have the deed brought out and request it to be read to see if it was drawn rigid, a circumstance to show that she had not finally delivered it. William M. Campbell says, as do other witnesses say, that the old lady became dissatisfied, and no longer wanted to stay at his house, and that she left his house after a stay of a few weeks and removed her things and went to a daughter's house, and afterwards to another daughter's house, where she died. Evidence goes to show that the wife of William M. Campbell was ill at ease with the old lady and would charge her with being uncleanly, and that the old lady would...