Fortune v. Hunt

• Decision Date: 09 December 1908
• Citation: 63 S.E. 82,149 N.C. 358
• Parties: FORTUNE et al. v. HUNT et al.
• Court: North Carolina Supreme Court

63 S.E. 82

149 N.C. 358

FORTUNE et al. v. HUNT et al.

Supreme Court of North Carolina

December 9, 1908

Appeal from Superior Court, Rutherford County; Ward, Judge.

Partition proceedings by Mrs. M. E. Fortune and others against Hal. Hunt and others, tried on issues joined in the pleadings before the clerk. Under the direction of the court, the jury found for plaintiffs, and, from the judgment rendered thereon, defendants appeal, assigning three errors. Reversed and new trial ordered.

There being a presumption that a deed, proved, registered, and offered in evidence by parties claiming under it was delivered, they have the right to have the jury pass on the credibility of a witness testifying that it was not delivered.

Gallert & Carson, for appellants.

BROWN J.

It is stated in the brief of the learned counsel for defendants that if his honor was correct in holding that upon the entire evidence, in any view of it, there was no delivery of the deed of September 21, 1870, from William Hunt, Sr., and wife to Elizabeth Hunt, then the judgment of the superior court should be affirmed. We think his honor did err in directing a verdict upon that issue. The deed in question was signed by William Hunt, Sr., on September 21, 1870, who died three or four days thereafter. It was probated January 1, 1891, and registered in August, 1906. The witnesses to the deed are J T. Mode and his father, W. G. Mode, who is dead. The facts as testified to by the witness to the deed, J. T. Mode, are that the deed was signed by William Hunt, Sr., three or four days before his death; that it was not delivered, although some of the children were present. William Hunt, Sr., signed the deed and the witness further testifies: "And, after he had done so, he told my father to take it up and keep it, and, if he never called for it, to deliver it to the proper person. My father carried it home and filed it away at his own house. It was not turned over to any of the grantees in the lifetime of William Hunt, Sr. I saw it in my father's possession do not know how defendants came in possession of it. Mrs. Elizabeth Hunt was there when the deed was signed. W. W. Hunt, Sr., signed several deeds at the same time, and he said to my father, W. G. Mode, to take the deeds, and, if he did not call for them, for him to deliver them to the proper parties." J. T. Mode also testified that the deed was in the possession of his father, W. G. Mode, after William Hunt, Sr.'s, death. We concede that when the maker of a deed delivers it to some third party for the grantee, parting with the possession of it without any condition or any direction to hold it for him, and without in some way reserving the right to repossess it, the delivery is complete and the title passes at once, although the grantee may be ignorant of the facts, and no subsequent act of the grantor or any one else can defeat the effect of such delivery. Phillips v. Houston, 50 N.C. 302; Robbins v. Rascoe, 120 N.C. 79, 26 S.E. 807, 38 L. R. A. 238, 58 Am. St. Rep. 774. The above cases and the others cited by the learned counsel for defendants sustain that proposition. But in the case under consideration there is no acknowledgment of execution by the grantor. The execution is proven by the witness to the deed after the grantor's death, and that witness testifies now to facts which completely rebuts any presumption of delivery. If the facts testified to by the witness be true, the grantor retained control of his deed and had the right to repossess himself of it at any time. There was never a delivery to the grantee nor to any one for her during the grantor's life. Baldwin v. Maultsby, 27 N.C. 505.

We differ with the learned counsel for defendants that the intention of William Hunt, Sr., is in any way involved. The delivery of a deed, a transmutation of the possession, is an essential ceremony to the complete execution of it, and if William Hunt, Sr., had delivered the paper writing to W. G Mode with an unqualified instruction that it should be delivered to the grantee after the death of the grantor, it would have been a good deed from the time of...