Griswold v. Griswold

• Decision Date: 27 November 1906
• Parties: GRISWOLD ET AL. v. GRISWOLD ET AL.
• Court: Alabama Supreme Court

42 So. 554

148 Ala. 239

GRISWOLD ET AL. v. GRISWOLD ET AL.

Supreme Court of Alabama

November 27, 1906

Appeal from Circuit Court, Bullock County; A. A. Evans, Judge.

"To be officially reported."

Ejectment by S. B. Griswold and others against Kinchen Griswold and others. From a judgment for plaintiffs, defendants appeal. Reversed and remanded.

This was an action of ejectment, begun by S. B. Griswold and others, to recover an undivided six-fourteenths interest in certain lands described in the complaint. It was originally brought against Kinchen Griswold, and on his motion C. C. and B. B. Griswold were made parties defendant as landlord and as owners of the undivided interest. It was agreed that J. J Griswold on and prior to May 12, 1896, was the owner of the lands in dispute, and was in possession of the same at the date of his death. It was further agreed that the defendants were in possession of all of the lands sued for, claiming the same as their own, prior to and at the time of the commencement of this action. It was shown by the testimony that plaintiffs and defendant were the children of said J. J Griswold. The following paper was introduced in evidence "State of Alabama, Bullock County. Know all men by these presents that I, John J. Griswold, for and in consideration of the love I have for my sons Kinchen B. Griswold, Ben B Griswold, and Charlie C. Griswold, do give, grant, and by these presents convey unto the said Kinch, Ben B., and Charlie Griswold, my sons, the following described real estate: [Here follows a description of the land sued for.] All in Bullock county, Ala. The above parties are to draw for their own share. Sol's house goes to E. 80, and two acres of land where the house stands. Simon's house goes to W. 80, and two acres of land where the house stands. [ Signed] J. J. Griswold." Attested by two witnesses. The evidence tended to show that the grantor spoke of this as a will. The evidence further tended to show that he delivered it to one of his daughters, to be given to the proper parties after his death. There was evidence also tending to show that the paper was placed in a tin box where the grantor kept his valuable papers, and after his death was taken out by a daughter and delivered to the defendants. At the conclusion of the testimony the court gave the plaintiff the affirmative charge.

R. L. Harmon and D. S. Bethune, for appellants.

J. D. Norman, for appellees.

ANDERSON J.

While there was evidence that the grantor to the deed, who is the father of all the parties, informed the draftsman of the instrument that he wished to make a will, it is in form a deed; and, conceding that he signed it, knowing what it was the question of delivery arises. "A grantor may deliver a deed to a third person, to hold until the grantor's death and then to deliver it to the grantee. Such a delivery is perfectly valid; but the deed must be left with the depository without a reservation by the grantor, express or implied, of the right to estop it or otherwise control its use." 9 Am. & Eng. Ency. Law, 157, and numerous authorities there cited. Our own court, in the case of Fitzpatrick v. Brigham, 130 Ala. 450, 30 So. 500, speaking through Justice Tyson, said: "For so long as he reserves to himself the locus penitentiæ, there is no delivery--no present intention to divest himself of the title to the property. We take it that the grantor need not expressly reserve to himself this right to repent; but if his act, upon which a delivery is predicated, does not place the deed beyond his control as matter of law, then his right of revocation is not gone." Frisbie v. McCarty, 1 Stew. & P. 56; Foster v. Mansfield (Mass.) 37 Am. Dec. 154. There was evidence from which the jury could infer such a delivery of the instrument as the law requires to make it operate...