Graham v. Suddeth

• Decision Date: 16 January 1911
• Parties: GRAHAM v. SUDDETH
• Court: Arkansas Supreme Court

133 S.W. 1033

97 Ark. 283

GRAHAM v. SUDDETH

Supreme Court of Arkansas

January 16, 1911

Appeal from Garland Circuit Court; W. H. Evans, Judge; reversed.

Cause remanded for a new trial.

Wood & Henderson, for appellant.

1. The deed was constructively delivered. The recording of a deed is prima facie evidence of delivery to and acceptance by the grantee. 25 Ark. 225; Kirby's Digest, § 756. There is no evidence to rebut this presumption.

2. The facts and circumstances all show an intention to deliver and a constructive delivery. 75 Ark. 321; 52 S.W. 1028; 54 P 162; 68 P. 607; 78 N.W.647; 74 Ark. 104; 77 Ark. 89; 13 Cyc 561, 568, 571, 534, 535, 748, etc.

3. The deed being to appellant's advantage, he will be presumed to have accepted. 77 Ark. 89; 67 N.E. 833; 3 L. R. A. 238; 78 N.W.647.

OPINION

FRAUENTHAL J.

This was an ejectment suit brought by Elizabeth Graham, the plaintiff below, against C. A. Suddeth to recover a house and lot in the city of Hot Springs. Both parties claimed title to the property from the same source: The plaintiff by a deed executed to her in 1905 by James Burden, and the defendant by a deed executed by the same grantor to him in 1908. It appears that James Burden was a native of England, and had lived in the city of Hot Springs, Arkansas, a number of years, where he acquired the property in controversy and occupied it as his home until his death in May, 1908. His nearest relatives were the plaintiff, who was his niece, and her father, both of whom were residents of England. From letters introduced in evidence it appears that he was devoted to his brother and his family, and assisted them at times by sending them money. In January, 1905, he wrote that he intended to deed to the plaintiff property of the value of 200 pounds, and that he would gladly deed all that he had to her, but that he would retain one piece of property for the reason that he could not then sell it, and that he desired to sell this piece of property in order to obtain money which he might need. He owned two lots in Hot Springs, and subsequently sold one of them. On December 15, 1905, he executed a deed by which he conveyed to the plaintiff the property involved in this suit, and on the same day duly acknowledged and delivered it to the recorder of Garland County for record, which was done. In the deed it was stated that the consideration thereof was "the sum of one dollar and the love and affection which I bear my niece, Elizabeth Graham." This deed was subsequently turned over to Burden, the grantor, and in 1908 was by him turned over to the defendant, in whose possession it was at Burden's death.

On December 24, 1907, James Burden wrote to plaintiff, asking a remittance of twenty pounds and also asking what were her wishes as to the house and lot, stating that he had the deed and insurance papers therefor and asking advice as to the disposition thereof. In the same letter he suggested that he thought it best to leave the property in an agent's hands, and that he would appoint defendant as such agent. In January, 1908, the plaintiff wrote to her uncle acknowledging receipt of the last above letter, and sent the money requested, and suggested that it might probably be best to send the deed and insurance papers to her. About that time or in December, 1907, Burden became quite ill, and the defendant and his family waited on him until his death, which occurred on May 31, 1908. The defendant testified that he took care of Burden for about two or three months.

On May 4, 1908, Burden executed a deed to defendant for the property in controversy, and in said deed it is stated that the consideration was $ 500; but as a matter of fact defendant gave nothing to Burden except his care and what he claimed that he paid for medicine and medical attention, which he estimated amounted to $ 100. At the time Burden executed this last deed defendant knew that he had executed the deed to plaintiff for this property, and he testified that Burden told him to burn it, but he did not do so. This is substantially all the evidence adduced upon the trial of the case. The jury returned a verdict in favor of defendant.

Upon the trial of the case the court gave a number of instructions to the jury which we think correctly presented to them the law applicable to this case, and the question therefore involved on this appeal for determination is whether or not there was sufficient legal evidence to sustain the verdict returned by them. The determination of that question depends upon whether or not the undisputed evidence shows that there was a delivery of the deed executed by James Burden to plaintiff in 1905. There was no testimony introduced proving or tending to prove that Burden at that time owed any debts, or that he executed said deed to defeat the collection of any debt that he might subsequently incur. He had therefore the right to make a voluntary conveyance of this property to the plaintiff.

A deed is defined to be "a written instrument signed, sealed and delivered;" and it is essential to the validity of a deed that there should be a delivery of the instrument. But in order to constitute a sufficient delivery thereof it is not necessary that there should be an actual manual transfer thereof to the grantee or a formal acceptance thereof by him. The question of a delivery of a deed is largely one of intent; and if it clearly appears from the words or acts of the grantor that it was his intention to treat the instrument as his deed and to make a disposal thereof, indicating that it should be effective, then the delivery is sufficient. As is said in the case of Russell v. May, 77 Ark. 89, 90 S.W. 617: "Any disposal of a deed,...