Gulf Red Cedar Co. v. Cranshaw

• Decision Date: 22 November 1910
• Citation: 169 Ala. 606,53 So. 812
• Parties: GULF RED CEDAR CO. v. CRANSHAW ET AL.
• Court: Alabama Supreme Court

53 So. 812

169 Ala. 606

GULF RED CEDAR CO. v. CRANSHAW ET AL.

Supreme Court of Alabama

November 22, 1910

Rehearing Denied Dec. 22, 1910.

Appeal from Chancery Court, Butler County; L. D. Gardner Chancellor.

Action by Louisa Cranshaw and others against the Gulf Red Cedar Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Powell & Hamilton, for appellant.

J. M Chilton and L. M. Lane, for appellees.

ANDERSON J.

This case has been often before this court and is reported in 131 Ala. 117, 30 So. 466, 90 Am. St. Rep. 22, 138 Ala. 134, 35 So. 50, and 148 Ala. 343, 42 So. 564, wherein most of the legal questions, then presented by the pleading, were settled. We agree with counsel for the appellant that the prime question to be settled by this appeal is whether or not the deed from Thos. C. Cranshaw to his children had been delivered before the alteration of same on June 1st of the year 1873. Counsel for the appellees contend that this question may be well pretermitted upon the theory that it matters not when the deed was delivered, as Thos. C. Cranshaw had no power or authority thereunder to sell the timber. This point was decided adversely to the appellees in the first report of this case, and which counsel admits, but insists that the last opinion (148 Ala. 343, 42 So. 564), in dealing with the second plea, in effect overrules the former opinion. To this we cannot agree. The last opinion in dealing with the second plea simply states that Thos. C. Cranshaw was without power "as a life tenant" to sell the growing timber on the land. It does not say that he did not have the power as per the terms of the conveyance. He doubtless did not have the power as a life tenant only, but the right to sell or dispose of the property was reserved in addition to the use and enjoyment of same, and the first opinion puts the right to sell the timber upon the power of disposition reserved in the deed and not upon the idea that he was a life tenant only, or was entitled to possession for his life or only until the youngest child became of age. We confess that the comment in the opinion does not aptly respond to plea 2, as the plea sets up a failure to deliver the deed until after the alteration, and does not ground the grantor's right of disposition upon the sole fact that he is a life tenant or that he was holding possession as such, but invokes the whole deed, and the powers derived thereunder as a defense. The opinion, however, is not in conflict with the first holding as the last opinion merely states that Cranshaw was without power as "a life tenant" to sell the growing timber. It does not say that he did not have the power to do so independent of being a life tenant and under the express authority to sell or dispose of same under the very terms of the deed.

It is an elementary principle that a deed does not become operative until a delivery, notwithstanding it may be signed and attested or acknowledged. There are also various and sundry ways of making a delivery. No formality, no particular words, no certain acts, are essential to a valid delivery of a deed. The fact rests in intention, and is to be collected from all the acts and declarations of the parties having relation to it. It may be actual, by a transfer of the conveyance, signed and attested, or acknowledged, from the manual possession of the grantor, to the manual possession of the grantee, though not a word is spoken; or it may be by saying something and doing nothing. No particular words are essential if they signify the grantor's intention to part with the dominion over it, and to pass it to the grantee. "Whenever there is a clear manifestation of the intention of the grantor in a deed, in all other respects properly executed, to part with the possession and dominion of it, and to transfer it to the grantee, the delivery is complete. 'In traditionibus chartarum, non quod dictum, sed quod factum est, inspicitur.' 2 Greenl. Cruise, 564, title 32, c. 2, note 2. The delivery may be to a third person for the grantee, and he will hold in trust for him. In this case the deed is operative from the delivery to the third person, though it does not come to the knowledge or possession of the grantee until after the death of the grantor. And when a deed is for the benefit of the grantee, imposing on him no burdens or duties, the presumption is of his acceptance. If it is duly acknowledged and recorded, the presumption of delivery attaches, which can be repelled only by evidence of the dissent of the grantee." Elsberry v. Boykin, 65 Ala. 341; Fitzpatrick v. Brigman, 130 Ala. 450, 30 So. 500. The true test of delivery is not as to what was actually said or done or what became of the conveyance, but whether or not the grantor intended to reserve to himself the locus p nitentiæ. If he did, there is no delivery and no present intention to divest himself of the title to the property. Griswold v. Griswold, 148 Ala. 241, 42 So. 554, 121 Am. St. Rep. 64. If, on the other hand, he parts with the control of the deed or does any act or says anything whereby he evinces an intention to part with the dominion over it and to pass it to the grantee, though he may retain the physical custody of the instrument, or whether it be turned over to another or placed upon the record, the delivery is complete if made with the intent that it was to so operate, and regardless of what was said or done in order to perfect same.

It may be regarded as settled in this state that when a paper purporting to be a deed is shown to have been signed by the grantor, to have been then acknowledged and duly certified by a proper officer, and recorded in the office of the judge of probate of the county in which the lands lie, and there is no other proof to weaken the force of these facts, this is sufficient proof of complete execution by delivery, although there is no direct proof of delivery. Alexander v Alexander, 71 Ala. 295; Gulf Cedar Co. v. O'Neal, 131 Ala. 128, 30 So. 466, 90 Am. St. Rep. 22; Elston v. Comer, 108 Ala. 76, 19 So. 324. Of course, registration of the deed is not conclusive evidence of a delivery, and it may be refuted by other evidence. The fact of delivery rests upon intention, and is to be collected from all the acts and declarations of the parties having relation to...