Davis v. Ellis
| Decision Date | 31 March 1894 |
| Citation | 19 S.E. 399,39 W.Va. 226 |
| Court | West Virginia Supreme Court |
| Parties | DAVIS v. ELLIS et al. |
Delivery of Deed—Presumption.
Delivery of a deed. When the grantor therein places a voluntary deed in the hands of a third person, to be delivered at an indefinite time to the grantee, and before the delivery thereof such person returns such deed to the grantor, who destroys it, the presumption of law is against the delivery of such deed, andin favor of grantor's right to destroy it, and cannot he overcome unless the grantee shows by a preponderance of affirmative evidence that the grantor, at the time he placed such deed in the hands of such third person, intended absolutely to. part with the control and dominion over the same.
(Syllabus by the Court.)
Appeal from circuit court, Putnam county; P. A. Guthrie, Judge.
Bill by Felix Davis against Lizzie Ellis and others. From a decree for plaintiff, defendant Lizzie Ellis appeals. Reversed.
Jos. E. Chilton, for appellant
Gunn & Switzer and L. C. Sommerville, for appellee.
On the 6th day of January, 1891, Felix Davis filed a bill in chancery in the circuit court of Putnam county against Lizzie Ellis, widow and devisee, and the many heirs at law, of Malone Ellis, deceased, for the purpose of establishing an alleged deed claimed to have been made by said
Malone Ellis to the plaintiff on the ——day
of ——, 1887, for two tracts of land, one containing 16 acres and the other 190 acres, and which was afterwards lost and could not be found. Lizzie Ellis, defendant, appeared, and demurred to said bill, and filed her answer, admitting that, prior to her marriage with said Malone Ellis, he had caused a deed to be prepared as set out in the bill, and had left the same in the hands of W. H. Morris, to be delivered after his death; but, before the same was delivered, he obtained it from Morris, and destroyed it, and made another deed, conveying part of the land to the plaintiff,-which he delivered, and in which she joined; and the residue he devised to her by will. On the hearing of the case, the circuit court, having by a former order overruled the demurrer, entered a decree in favor of the plaintiff, holding that the devise of the land to the defendant Lizzie Ellis was null and void, and appointed a commissioner to execute a deed to the plaintiff for said two tracts of land.
From this decree the defendant Lizzie Ellis appeals, and assigns as error: (1) The order of the court overruling the demurrer to the bill; (2) the final decree of the court in favor of the plaintiff. Three witnesses in this case are objected to as incompetent to testify as to any communication had with Malone Ellis, to wit, Emma Davis, wife of plaintiff, Lizzie Ellis, the defendant, and E. T. Ellis, also a defendant. The circuit court sustained the exceptions as to the testimony of said Lizzie Ellis and Emma Davis as to any personal transaction or communication had with decedent, and properly so. See Kilgore v. Hanley, 27 W. Va. 451; Kimmel v. Shroyer, 28 W. Va. 505. The court should have also excluded the testimony of the defendant E. T. Ellis. He was a party to the suit, and interested in the result thereof, not as an heir, as the plaintiff's counsel intimate, but as having received a deed for himself at the time he received the deed for the plaintiff as he claims, for another tract of land, from the decedent The object of the law is to prevent perjury and collusion, and if E. T. Ellis were permitted to testify in behalf of the plaintiff's deed, the plaintiff could in turn testify as to the delivery of E. T. Ellis' deed, and the very spirit of the law would be defeated. See case of Lang v. Smith, 37 W. Va. 736, 17 S. E. 213, as to the evidence of Charles P. Smith, a witness situated in that case as this witness is in this. The only competent evidence on the subject of delivery is the testimony of W. H. Morris, whose testimony, as to this matter, is to the following effect: That Malone Ellis, being feeble in health, and believing that he was going to die, and having no children, sent for him, and had him draw up two deeds; the one mentioned in the bill, the other to said E. T. Ellis. He told him to take the deeds with him, and deliver them to the grantees. The witness could not remember when they were to be delivered, or why not delivered at the time, as the plaintiff was in the house when the deeds were drawn up. The...
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...Smith's Estate, 244 Iowa 643, 56 N.W.2d 477 (1953); Downs v. Downs, supra; 11 Am.Jur.2d Bills and Notes S 276, p. 302.10 Davis v. Ellis, 39 W.Va. 226, 19 S.E. 399 (1894); 11 Am.Jur.2d Bills and Notes § 278, pp. 303--04.11 See 10 C.J.S. Bills and Notes § 79, pp. 515--16.12 Reese v. Lowry, 14......
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