Cherry v. Herring

• Decision Date: 01 February 1888
• Citation: 3 So. 667,83 Ala. 458
• Parties: CHERRY ET AL. v. HERRING.
• Court: Alabama Supreme Court

3 So. 667

83 Ala. 458

CHERRY ET AL. v. HERRING.

Supreme Court of Alabama

February 1, 1888

Appeal from circuit court, Lee county; J. M. CARMICHAEL, Judge.

This action was brought by the appellants, Cherry, Smith & Co., a partnership firm, against the appellee, Warren Herring, for the recovery of a certain tract of land, described in the complaint, and was commenced in January, 1883. Issue was joined in the circuit court at its spring term of 1887, on the plea of not guilty. On account of the ruling of the court, the plaintiffs were compelled to submit to a nonsuit. Both the plaintiffs and the defendant claimed title through the same person, one Thomas J. Stephens; and on the trial of the case the plaintiffs introduced in evidence a deed properly drawn and acknowledged, from the said Stephens and his wife to the plaintiffs, which conveyed to them the land in controversy, and bearing date of November 18, 1881. The defendant introduced as a witness in his behalf the said Thomas J. Stephens, who testified in substance, as shown by the bill of exceptions, that he made an executory contract with the defendant Warren Herring for the sale of the land in controversy some years before the 8th of November, 1881, and gave defendant his bond for title to the said lands; that on the 8th day of November he made a deed to said defendant of said land, and "handed it to him," and received from the defendant the bond for title previously given to him. On cross-examination of this witness the plaintiffs offered to prove by him that pursuant to an agreement between him, said Stephens, the defendant, and one G. W. Hooper he had had the deed to the said land made to the defendant, and had properly acknowledged it, and that it was to be turned over to the said G. W. Hooper to be kept by him until he should negotiable a loan on the said land, and until Herring should pay, or have paid, to said Stephens the sum of $125 the balance of the purchase money still due on the land; that said Stephens met the defendant in Opilika, near the office of the said Hooper, "handed him the deed" which was to be handed to Hooper, and that they walked together to the office of said Hooper, and that the deed was then handed over to him, to be kept until the loan was negotiated, and the said $125 was paid, as by the agreement; that the loan was never obtained, and the $125 was never paid by Hooper or the defendant. The court refused to allow the plaintiffs to prove these facts, and the plaintiffs then and thereupon excepted. The plaintiffs then offered to prove, in this connection that the said George W. Hooper was dead; that he testified in this case on a former trial, and then offered to prove his testimony, which was in substances as follows: That there was an arrangement between him, (Hooper,) the defendant, and the said Stephens, (such as has just been set out above); that the deed was left with him, that he might obtain a loan on the land, and until the said $125 was paid to the said Stephens; that he indorsed on the deed that it was left with him as an escrow; and that he never obtained the loan on the land as desired; and that the said sum of money was never paid to Stephens. The court refused to let this evidence be introduced, and the plaintiffs excepted. The plaintiffs also offered to prove that the defendant was indebted to them in a good large amount; that after the defendant failed to get the loan on the land, he directed them (plaintiffs) to call on the said G. W. Hooper, and get the deed he was holding, and pay Mr. Stephens the $125, and take a deed from Stephens for the land in controversy; that they, the plaintiffs, did so and that this was the deed made by Stephens to them on the 18th of November, 1881, and the one upon the title of which they bring this suit. The court refused to admit this evidence, and the plaintiffs thereupon excepted. These several rulings of the court are separately assigned as error.

A. & R. B. Barnes and Geo. P. Harrison, Jr., for appellants.

J. M. Chilton, for appellee.

STONE C.J.

We do not question the doctrine so firmly established that a deed cannot be delivered to the grantee, to be held by him as an escrow, and to become valid and binding as a conveyance only on the happening of an event to transpire afterwards. Williams v. Higgins, 69 Ala. 517; 1 Devl. Deeds, § 314; 3 Washb. Real Prop. (5th Ed.) 317; Insurance Co. v. McMillan, 29 Ala 147; Simonton's Estate, 4 Watts, 180. It is certainly true that a paper, on its face a deed, though formally executed in all other respects, is nevertheless inoperative as a deed, if there has been no delivery to the grantee. Delivery, however, need not be positively proved. It is often inferred from circumstances, not the least frequent of which in its occurrence is the possession of the deed by the grantee. Many other acts or facts justify the presumption of delivery, but we need not enumerate them. 3 Brick. Dig. 298, §§ 25-27; 1 Devl. Deeds, §§ 260 et seq.; 1 Brick. D. Dig. 531; 3 Washb. Real Prop. (5th Ed.) 304. When the testimony is indeterminate, the inquiry of delivered vel non is one of intention, to be determined by the jury. Alexander v. Alexander, 71 Ala. 295; Muarray v. Stair, 2 Barn. & C. 82; 1 Devl. Deeds, §§ 262, 263. The fact that the grantee acquired, or at some time had the possession of, the deed, unexplained, raises the presumption that it was delivered to him by the grantor, and that it thereby became operative as a conveyance. We have shown above that this presumption cannot be overturned by proving that it was delivered to him as an escrow to become a conveyance on the happening of some future event. The reason assigned for this ruling is that when a grantor delivers to a grantee a deed formally executed in all other respects, each of the two parties has then performed every act which he proposes to do or can do in reference to the execution of the paper; and these acts, without more, raise the legal presumption that the conveyance is fully executed. Doing or not doing the outside thing upon which the effect of the delivery as a complete execution of the deed is to depend, is not a proposition to do anything further with...