Carrigan v. Byrd
| Decision Date | 02 May 1885 |
| Citation | 23 S.C. 89 |
| Parties | CARRIGAN v. BYRD. |
| Court | South Carolina Supreme Court |
1. The delivery of a deed of conveyance is composed of two concurrent parts: (1) an intention to deliver, and (2) an act evincing a purpose to part with the control of the instrument. Neither of these parts, by itself, is sufficient to constitute delivery.
2. The Circuit Judge, upon testimony taken before him, found as matter of fact that the grantor had delivered certain deeds in question, and this court concurred in such finding.
3. This court will not reverse a Circuit Judge's finding of fact upon conflicting testimony, in cases where he has observed the witnesses, unless the overbearing weight of such testimony is clearly against his finding.
4. It is not a safe rule to set aside a finding of fact upon a consideration of the probabilities of human conduct.
5. The plaintiff, a subsequent mortgagee for value, had in this case sufficient information of certain prior unrecorded voluntary deeds to charge him with notice of their delivery.
6. A being then indebted, made three voluntary conveyances of his land, and afterwards judgments were obtained against him on this antecedent indebtedness. B, with notice of these prior deeds, advanced a sum sufficient to pay off these judgments which were then assigned to him; and as further security, A gave to B a bond with a higher rate of interest, and a mortgage of the land embraced in the said voluntary conveyances. In action by B against A and these grantees to foreclose such mortgage,- held , that the deeds were not a fraud upon any rights which B was here seeking to enforce; and, therefore, whether A owed any other debts at the time he made the conveyances, was irrelevant in this action.
7. The rights of a party under a supposed, but unproven, state of facts, not considered.
Before PRESSLEY, J., Darlington, October, 1883.
At the hearing of this appeal, honorable W. H. Wallace, judge of the seventh Circuit, sat in the stead of Mr. Justice McIver, who had been of counsel in the cause.
This was an action by William A. Carrigan against Evander Byrd Lewis S. Byrd, Peter J. Byrd, and Sarah E. Coker, commenced in January, 1876. The cause was heard by Judge Pressley upon the pleadings and upon testimony taken before him at the hearing. He subsequently filed a decree, which is substantially stated in the opinion of this court, as are also the plaintiff's exceptions thereto.
Messrs. Boyd & Nettles , for appellant.
Messrs. E. K. Dargan and G. W. Dargan , contra.
This is an action to foreclose a mortgage of real estate. The mortgage was executed to plaintiff by Evander Byrd on July 13, 1871, to secure a bond of the same date. The consideration of the bond was money expended by plaintiff, at the request of Byrd, in purchasing certain judgments that had been obtained against Byrd by his creditors, who were pressing for payment. Upon a composition between the holders of the judgments and plaintiff, the judgments were assigned to the latter. As further security, plaintiff took a chattel mortgage from Byrd, and, as still further security, he took from Byrd a bond and mortgage of real estate-that which he seeks to foreclose in this action. The bond provides for a larger rate of interest than that borne by the judgments.
This action was commenced against Evander Byrd, the debtor, and also against certain children of Evander Byrd, to wit: Sarah Coker, Lewis Byrd, and Peter Byrd. The complaint, besides the usual allegations of a complaint for foreclosure, alleged that the defendants, Sarah, Peter, and Lewis, claimed an interest in the land described in the mortgage adversely to the claims of the plaintiff, and tendered an issue to these upon the validity of their respective claims. Evander Byrd did not answer. Sarah, Peter, and Lewis answered, and alleged that Evander Byrd, their father, had conveyed to each of them by deed, bearing date January 4, 1870, and before the execution of the bond and mortgage upon which the action is brought, different parcels of the land described in the mortgage; that these deeds were not recorded in the registry office at Darlington, but that plaintiff had actual notice of them before he took the bond and mortgage; that Evander Byrd had other property, real and personal, besides that embraced in the mortgage; and that by reason of the aforesaid chattel mortgage and of the judgments assigned to him, plaintiff had it in his power to obtain satisfaction of his debt without resorting to the land conveyed to these defendants. It appears from the case that the debts upon which the judgments against Evander Byrd were obtained, which were assigned to plaintiff, were in existence when the deeds were executed, and the judgments were obtained upon them after the execution of the deeds. There is no controversy about the execution of the bond and mortgage. Nor, on the other hand, any question as to the execution of the deeds.
Plaintiff attacks the sufficiency of the deeds to protect the grantees against his mortgage upon three grounds: First . Because they were never delivered by Evander Byrd. Second . Because, if delivered, he had no notice of the deeds. Third . Because, being voluntary, they are fraudulent and void as to debts existing at the time of their execution. These issues were decided by the Circuit Judge adversely to the plaintiff, and the grounds of appeal make the same questions here.
Plaintiff's first ground of appeal is, in substance, that the preponderating weight of the testimony is against the delivery of the deeds. The delivery, necessary to transfer title to real property under a deed signed and sealed, is composed of two concurrent parts, namely, an intention to deliver and an act evincing a purpose to part with the control of the instrument. Neither of these parts by itself is sufficient to constitute delivery. There may be an intention never consummated, and the instrument may be put in the custody of another, to be held subject to the control of the grantor. This rule is so well settled that it is only necessary to refer to some of our cases which declare it. Broughton v. Telfer , 3 Rich. Eq. , 435; Wood v. Ingraham , 3 Strobh. Eq. , 111; Jackson v. Inabnit , 2 Hill Ch. , 412; Arthur v. Anderson , 9 S.C. 249; Fraser v. Davie , 11 Id. , 69.
It is not disputed that the deeds challenged here were put in the possession of Mrs. Coker, one of the grantees, by Evander Byrd. In the case of Hagood v. Harley ( ), there is a strong intimation, and authority referred to in support of the intimation, that when a grantor puts a deed into the possession of the grantee, to be his deed upon the performance of a condition, that this is an absolute delivery, and the subsequent words are void and repugnant. This could only relate to the deed to Mrs. Coker, and according to our view of the case it is not necessary to rest the decision of this question upon it.
The deeds having been put in the possession of Mrs. Coker, the question is, with what purpose was it done? The testimony as to what was said and done at the time of the act is conflicting. Mrs. Coker testifies that when the deeds were executed on July 13, 1870, her father gave the deed to her into her hands: that her two brothers, Peter and Lewis, were minors and absent from home and that her father offered to her the deeds to them, and said: " This is law, you must stand proxy for the boys as they are not here," and that then she took these deeds and gave them to the boys upon their return from school. She also says that the deed to her brother David was at that time delivered to him, and that he requested her to keep it for him, which she did.
It is not our purpose to go, with any degree of detail, into the testimony; but we will mention some of the circumstances testified to in support of the testimony of Mrs. Coker. Among these are the facts that at the time the deeds in...
To continue reading
Request your trial