Fitzpatrick v. Brigman

• Decision Date: 14 June 1901
• Citation: 30 So. 500,130 Ala. 450
• Parties: FITZPATRICK v. BRIGMAN.
• Court: Alabama Supreme Court

30 So. 500

130 Ala. 450

FITZPATRICK v. BRIGMAN.

Supreme Court of Alabama

June 14, 1901

Appeal from circuit court, Jefferson county; A. A. Coleman, Judge.

Action by J. W. Brigman against Joseph Fitzpatrick. Judgment for plaintiff. Defendant appeals. Reversed.

The common source of title was admitted to be in Isaac Price. Plaintiff introduced in evidence a quitclaim deed of the property in controversy from Isaac Price to R. M. Buck, dated the 12th day of March, 1895, acknowledged March 19, 1895, but not filed for record until the 27th of September, 1899; also a warranty deed from R. M. Buck to T. G. Elder, dated the 4th of March, 1895, and acknowledged and recorded the 4th of April, 1895; also a warranty deed from T. G. Elder to plaintiff, J. W. Brigman, dated, acknowledged, and recorded the 24th of May, 1898. Defendant then introduced in evidence a quitclaim deed of the property in controversy from said Isaac Price, the common source of title, to defendant, Joseph Fitzpatrick, dated the 26th of April, 1898, acknowledged the 27th of April, 1898, and filed for record the 28th of November, 1898, which said deed recited a valuable consideration. It was shown by the evidence that the deed executed by Isaac Price to R. M. Buck was given by him to Buck to land which he exchanged to Buck for other lands which Buck conveyed to him; that H. C. Selheimer, Esq., was the attorney of Price in the negotiations for this exchange of lands, and that, at the time of the execution of the deed from Price to Buck, Price left the deed with Selheimer without any instructions as to what he was to do with said deed; that said deed remained in the possession of Selheimer until after the defendant had purchased the lots in controversy from Price, and had received the deed from Price and had the same recorded; that, subsequent to the execution of the deed from Price to the defendant, the attorney of the plaintiff inquired of Selheimer if he had possession of the deed from Price to Buck; that, upon investigation among his papers, Selheimer found said deed; and that, some time after the inquiry by the plaintiff's attorney, Selheimer asked Price if he should deliver the deed to the plaintiff's attorney, and, upon being directed to do so by Price, he delivered the deed to the plaintiff's attorney. The witness Selheimer testified that he did not hold the deed for Isaac Price; that "it must have been left in his possession from the time of its date." During the cross-examination of Isaac Price, who was introduced as a witness for the defendant, he testified that, "if he delivered the deed to his attorney, it was not with the intention of recalling it." To this statement of the witness the defendant duly objected and moved to exclude it upon the ground that the witness could not state what was his intention. The court overruled the objection and motion, and to this ruling the defendant duly excepted. This witness further stated during his cross-examination that, "if he turned the deed over to Mr. Selheimer, it was not to keep for witness." The defendant objected to this statement of the witness, and moved to exclude the same from the jury. The court overruled the objection and motion, and to this ruling the defendant duly excepted. The other facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence the court gave to the jury the following written charge: "If the jury believe the evidence, they will find for the plaintiff for the property described in the complaint in this case." To the giving of this charge the defendant duly excepted. There were verdict and judgment for the plaintiff. The defendant appeals and assigns as error the several rulings of the trial court to which exceptions were reserved.

J. W Tomlinson and J. G. Crews, for appellant.

Smith &amp Smith, for appellee.

TYSON J.

This is an action in the nature of an action of ejectment. Plaintiff and defendant claim title from a common source. One of the important questions presented is whether the deed from Price to one Buck, through whom plaintiff claims to have derived his title by mesne conveyances, was delivered prior to the execution and recordation of the deed from Price to defendant. As delivery was necessary to convey title, if the deed was not delivered to Buck until after Price had executed the deed to the defendant, Buck got no title and of consequence conveyed nothing by his deed to Elder, from whom plaintiff got his deed. Goodlett v. Kelly, 74 Ala 213, 220. In short, a deed becomes effectual only, as a conveyance of the title, from the date of its delivery. It is true, the presumption will be indulged, in the absence of evidence to the contrary, that the date of the deed, or where the acknowledgment necessary to its execution...