Davis v. Cross

• Decision Date: 30 April 1885
• Citation: 82 Tenn. 637
• Parties: ROBERT DAVIS et al. v. H. C. CROSS.
• Court: Tennessee Supreme Court

82 Tenn. 637

ROBERT DAVIS et al.

v.H. C. CROSS.

Supreme Court of Tennessee.

April Term, 1885.

FROM SHELBY.

Appeal from the Chancery Court at Memphis. W. W. MCDOWELL, Chancellor.

WEATHERFORD & ESTES for complainants.

C. W. FRAZIER for defendant.

COOPER, J., delivered the opinion of the court.

Ejectment bill, both parties claiming under deeds of gift executed by the same person. The chancellor decreed in favor of the complainants, while the Referees have reported in favor of the defendant. The complainants alone except to the report.

The contest, as it comes before us on the exceptions, is one of title, the point being whether there was a valid delivery to the defendant of the deed under which he claims. That deed is dated November 5, 1874, was acknowledged on the same day by the grantor before the clerk of the county court as well as attested by witnesses, and was noted for registration on September 13, 1880, the day after the grantor's death. The deed to the complainants is for about twenty-nine acres, part of the land described in the defendant's deed, bears date May 2, 1879, was acknowledged by the grantor on the 20th of the same month, and was noted for registration on the day after grantor's death, but several hours subsequent to the noting of the defendant's deed. The title of the defendant is therefore, if good by delivery before registration, older than the title of the complainants, and first registered.

M. S. Brooks, the common grantor, was an old man, and resided on the farm described in the deed to the defendant at the date of that instrument, and continued to live there until his death. The defendant was a nephew of the grantor, and living with him when the deed was signed, but shortly afterwards left him, removing to Massachusetts. The complainants were the children of a negro foreman or manager of the grantor's farm for several years, who died in 1877. The grantor surrendered to the complainants the possession of the land conveyed to them after the execution of the deed, and it was rented out for them by the eldest of the children for the year 1880. The deed was delivered to the eldest of the children, then about seventeen years of age. The defendant obtained possession of this land, after the death of the grantor, by collusion with the tenant.

The deed to the defendant purports to convey to him the whole of the testator's farm, consisting of 150 acres, “together with all and singular the household and kitchen furniture, pictures, paintings, growing crops, tools and farming utensils of every description, eight mules, three horses, twelve cows and calves, and the stock of hogs and sheep on said place.” It is, in form, an absolute conveyance, without any reservation in favor of the grantor, but contains at the end the following clause: “This deed will be delivered to a friend for safe-keeping, with directions to deliver at such time as I may direct.” It contains, therefore, positive evidence on its face that it was not intended to be delivered to the grantee at that time. It was in fact delivered to A. G. Dennis, one of the attesting witnesses, he thinks by the defendant, enclosed in a sealed envelope, with the following endorsement written by the defendant, but signed by the grantor: “H. Clay Cross--private papers. A. G. Dennis is alone desired to open this package immediately after my death, and examine papers, and where records of them have not been made, for A. G. Dennis to immediately deliver them to recorder of Shelby county for record. M. S. Brooks.” The deposition of Dennis is taken, and he says: “I think Mr. Brooks or some one else told me that he intended to have put the deed to record himself, but had been advised that inasmuch as he intended the place as a permanent and final home for himself, he ought to retain the deed or title as long as he lived, and had in this view given the direction on the back of the envelope.” The lawyer, who drew the deed at the instance of Mr. Brooks,...