Culver v. Carroll

Decision Date16 November 1911
Citation57 So. 767,175 Ala. 469
PartiesCULVER ET AL. v. CARROLL.
CourtAlabama Supreme Court

On Rehearing, February 15, 1912.

On Rehearing.

Appeal from Circuit Court, Pike County; H. A. Pearce, Judge.

Ejectment by L. A. Culver and others against J. S. Carroll. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

Dowdell C.J., and Mayfield and Sayre, JJ., dissenting.

Norman & Son, for appellants.

Foster Samford & Carroll, for appellee.

SOMERVILLE J.

The action is one of ejectment brought to recover a tract of land described in a deed executed by L. A. Culver, deceased, to his wife, Julia F. Culver. The conveyance is dated December 22, 1891, is duly signed and acknowledged, and based on a consideration of natural love and affection. The lower court permitted the deed to go to the jury as part of the evidence in the case, to which exception was taken by appellant's counsel, and error is assigned based on this ruling. The question raised for decision is whether the deed was ever delivered to the grantee, Mrs. Culver, during the lifetime of the grantor so as to have become effective. The paper was left by the grantor with the witness Kelsoe and one Sykes now deceased, before the death of the former, who committed suicide very soon after. All the evidence on the question of delivery was given by Kelsoe, who stated that he could not say what Culver had said when he handed the deed over to them, and it was put in a safe. The witness observed: "I don't know whether he said, 'Take the deed and keep it for me'; or, 'Take it and keep it.' I would not be positive it was either one, but it was something similar. I just inferred from it he wanted the paper preserved." On cross-examination the witness further said: "I cannot be positive what he said. He may have said something else. I cannot be positive what he said."

The rule is well settled in every jurisdiction that delivery is an indispensable requisite to the validity of a deed whether it be a conveyance upon valuable consideration, or a voluntary conveyance in consideration of love and affection. And it is necessary that the delivery should be made in the lifetime of the grantor, for "there can be no delivery by a dead hand." A delivery after the grantor's death is no delivery. Jones v. Jones, 6 Conn. 111, 16 Am. Dec. 39, and note; Jackson v. Leek, 12 Wend. (N. Y.) 107. Yet there may be an inchoate delivery in the grantor's lifetime which may become absolute on his death. Foster v. Mansfield, 3 Metc. (Mass.) 412, 37 Am. Dec. 154. Cases of this kind sometimes present considerable difficulty.

Deeds are sometimes delivered by a grantor to a third person as a depositary, with instructions to deliver to the grantee on the contingency of the grantor's death. And it is commonly held that when this instruction is carried out such delivery will relate back to the prior delivery for the purpose of passing the grantor's title. The intention of the party is the substantive thing. The first depositary is a trustee holding the deed for the benefit of the grantee. Elsberry v. Boykin, 65 Ala. 340; Wheelwright v. Wheelwright, 2 Mass. 447, 3 Am. Dec. 66; Taft v. Taft, 59 Mich. 185, 26 N.W. 426, 60 Am. Rep. 291; Sears v. Scranton Trust Co., 228 Pa. 126, 77 A. 423, 20 Ann. Cas. 1148-1150; 9 Am. & Eng. Ency. Law, 157.

If the deed is subject to be recalled by the grantor before delivery to the grantee, there is no effectual delivery by the maker. Prutsman v. Baker, 30 Wis. 644, 11 Am. Rep. 592; Davis v. Cross, 14 Lea (Tenn.) 637, 52 Am. Rep. 177.

Under the above principles and those settled by our own authorities, we are of the opinion that the court erred in not excluding the deed from the jury as requested by the appellants. Fitzpatrick v. Brigman, 130 Ala. 453, 30 So. 500; Id., 133 Ala. 242, 31 So. 940; Tarwater v. Going, 140 Ala. 273, 37 So. 330.

The present case cannot be distinguished in legal effect from Fitzpatrick v. Brigman, 130 Ala. 450, 30 So. 500, and neither is in conflict with Fitzpatrick v. Brigman, 133 Ala. 242, 31 So. 940, where additional contemporaneous acts shown by the evidence pointed very strongly to the grantor's intention to vest title in the grantee.

It is unnecessary to pass on the other assignments of error if the deed be excluded from evidence.

Reversed and remanded.

All of the Justices concur.

On Rehearing.

The real question involved in this case is not whether the grantor Culver entertained a general intention that the subject-matter of the deed should at some time and in some way pass to the grantee named; for that intention would always be quite plainly evidenced by the mere fact of preparing and signing the deed.

The true inquiry is, as settled by the authorities: Did he execute that intention by a sufficient delivery of the deed in his lifetime, intending by that act to then pass the title? It is, of course, conceded that the question of delivery is a question of fact, resting in the intention of the grantor, and, like other questions of fact, is generally to be submitted to and determined by the jury. Gregory v. Walker, 38 Ala. 26; Alexander v. Alexander, 71 Ala. 295; Cherry v. Herring, 83 Ala. 458, 3 So. 667; Fitzpatrick v. Brigman, 133 Ala. 242, 31 So. 940; Napier v. Elliott, 162 Ala. 129, 50 So. 149; Rickert v. Touart, 56 So. 708. But the point of difficulty is in determining what act or acts on the part of the grantor will be sufficient to generate as a jury question the issue of delivery vel non in the first instance; and, with respect to the alleged act of delivery, what circumstances are relevant and competent to be considered.

In Elsberry v. Boykin, 65 Ala. 340, it was said: "The fact (of delivery) rests in intention, and is to be collected from all the acts and declarations of the parties having relation to it." And this language has been several times repeated by this court. Napier v. Elliott, 146 Ala. 213, 40 So. 752, 119 Am. St. Rep. 17; Id., 162 Ala. 129, 50 So. 148; Gulf, etc., Co. v. Crenshaw, 169 Ala. 606, 53 So. 812.

In Fitzpatrick v. Brigman, 130 Ala. 450, 30 So. 500, the subject of delivery is fully discussed, and the principles which determine the sufficiency of a delivery, when made to a person other than the grantee or his agent, are clearly and precisely stated by Tyson, J., as follows: "(1) The delivery must be so effectual as to deprive the grantor of the right to revoke it, for so long as he reserves to himself the locus p nitentiæ, there is no delivery--no present intention to divest himself of the title to the property. (2) The grantor need not expressly reserve to himself this right to repent, but if his act upon which a delivery is predicated does not place the deed beyond his control, as matter of law, then his right of revocation is not gone. (3) The law does not presume, when a deed is handed to a third person, that it has been with the intention to pass title to the grantee. In order to make such an act a delivery to the grantee, the intention of the grantor must be expressed at the time in an unmistakable manner." (4) Although an alleged grantor has signed and acknowledged a deed and left it with his agent or attorney, if he then said nothing to indicate an intention that the deed should be considered as executed, and did no act other than leave it with his agent, "this act was utterly insufficient as expressing a present intention to divest himself of the title to the property described in the deed." With respect, also, to the sources from which intention to deliver may be sought, in the absence of a manual delivery to the grantee, it is specifically declared that "the grantor must have, by some word expressed or act done, clearly indicated his intention, at the time of its signing by him or subsequently while the deed is in his possession, that the deed shall be considered as executed." Although this was an action of ejectment, tried before a jury, it was held as matter of law that the deed was not admissible.

On a second appeal (Fitzpatrick v. Brigman, 133 Ala. 242, 31 So. 940) the principles stated on the former appeal were approved; but, additional evidence bearing upon the grantor's intention in leaving the deed with his attorney having been introduced, it was ruled that the question of intention became an issue for the jury. To quote from the opinion of Dowdell, J.: "What is necessary to constitute a delivery was fully discussed on the former appeal, and we content ourselves with what was then said as being sufficient for present purposes. What was Price's intention is a question of fact to be determined by the jury from the attendant circumstances at the time. And to this end it was competent on the trial to adduce evidence of the transaction between Price and Buck, and what was said and done at the time by both of said parties, as well as by Selheimer (the depositary) who acted as attorney for Price." (Italics ours.) It is worthy of note that, on the facts reported, the delivery to Selheimer might well have been treated as a constructive delivery to the grantee on the principles stated in Devlin on Deeds (3d Ed.) § 278.

In the later case of Tarwater v. Going, 140 Ala. 273, 37 So. 330, it was said, by Sharpe, J., that "delivery is essential to the complete execution of a deed, and a mere deposit of a writing, complete in other respects as a deed, with a person other than the one named as grantee, or his agent, when unaccompanied with any intention of passing title, is not a delivery such as is necessary to constitute a deed."

Perhaps the clearest and completest statement of the law on this subject is the following, by Dowling, J., in Osborne v Eslinger, 155 Ind. 351, 360, 58 N.E. 439, 442, 80 Am. St. Rep. 240, 247: "Where the claim of title rests upon the...

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