Harrell v. Nicholson
Decision Date | 12 February 1904 |
Citation | 119 Ga. 458,46 S.E. 623 |
Parties | HARRELL . v. NICHOLSON. |
Court | Georgia Supreme Court |
GIFT—VALIDITY—DELIVERY.
1. The payee of a note, a short time before his death, sent for the maker, and directed him to look in a certain box in the house for the note, and to take it and keep it. Upon being informed that the note could not be found in the box, he told the maker to look in his private file at the bank, where he would find the note, and to keep it when he found it. The maker was unable to find the note at the bank or elsewhere. After the payee's death a third person found the note in the house, and turned it over to the administrator. Held, that the transaction did not constitute a gift; there being no actual delivery of the note to the maker, and nothing which the law would accept in lieu thereof.
¶ 1. See Gilts, voL 24, Cent. Dig. § 58.
(Syllabus by the Court.)
Error from Superior Court, Stewart County; Z. A. Littlejohn, Judge.
Action by S. J. Harrell, administrator of D. B. Harrell, against D. W. Nicholson. Judgment for defendant, and plaintiff brings error. Reversed.
Blalock & Cobb and B. F. Harrell & Son, for plaintiff in error.
J. B. Hudson and E A. Hawkins, for defendant in error.
This was an action by the administrator of D. B. Harrell against D. W. Nicholson upon a promissory note signed by the defendant, and made payable to D. B. Harrell. The only questions with which we find it necessary to deal arise out of a plea that the intestate, shortly before his death, gave the note to the defendant, intending thereby that the debt should be canceled. The plea set up that the intestate "canceled and surrendered" the note to the defendant in consideration of past services rendered by him, but that the note itself could not be found, though diligent search was made for it, at the request of the intestate, both at the bank where he kept some of his papers and at his home; that the intestate thought the note was at the bank, and instructed the defendant to go there and get it and keep it. There was evidence for the defendant to the effect that while the intestate was ill, and a short time before his death, he told the defendant to get his private box, and to look in it and get his note. Upon being told that the note could not be found in the box, the intestate told the defendant that the note would be found in his private file at the bank, and that he had intended taking it to defendant. The defendant afterwards looked through this private file, but could not find the note. Some months after the intestate's death the note was found in his house, and turned over to his administrator.
The evidence shows a gift inter vivos, if gift at all. There was nothing to show that the intestate intended the gift to be absolute only in the event of death, and hence it could not be a gift mortis causa. The distinction between the two will be found stated in Burt v. Andrews, 112 Ga. 466, 37 S. E. 726. This distinction is, however, unimportant in this case. All are agreed that, to constitute a gift, there must be a present intention to give, and this intention must bo accompanied with delivery. Actual manual delivery is not essential in all cases. Con-structive and symbolical delivery has been held to be sufficient under certain circumstances. If the property is bulky, and the present intention to give is clear, and the donee, as soon thereafter as practicable, reduces the property to possession, and exercises dominion over it, the gift will be upheld. 14 Am. & Eng. Enc. L. (2d Ed.) 1021, 1022; Thornton on Gifts, § 140. And it has been held that the delivery of a key to a chest or trunk is sufficient, if all the other elements are present. 14 Am. & Eng. Enc. L. (2d Ed.) 1021, 1022; Thomas' Adm'r v. Lewis (Va.) 15 S. E. 389, 18 L. R. A. 170, 37 Am. St. Rep. 848. It has also been held that the gift was complete where the donor pointed out to the donee several places where money was buried; the donee afterwards going to the places thus indicated, digging up the treasure, and reducing it to possession. Waite v. Grubbe (Or.) 73 Pac. 206.
Our Code, which is but a codification of the common law on the subject, states the rule thus: "To constitute a valid gift, there must be the intention to give by the donor, acceptance by the donee, and delivery of the article given, or some act accepted by the law in lieu thereof." Civ. Code 1895, § 3564. There must be in every case a delivery of some sort—such a delivery as would put it beyond the power of the donor...
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Jackson v. Gallagher
...going to them was paid into the hands of the donor as guardian. It was held that this showed a consummated gift. In Harrell v. Nicholson, 119 Ga. 458, 46 S.E. 623, Justice Cobb said: "The rule as to delivery is not so strictly applied to transactions between members of a family living in th......
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Helmer v. Helmer
...accepted as delivery." And see Anderson v. Baker, 1 Ga. 595; Evans v. Lipscomb, 31 Ga. 71; Mims v. Ross, 42 Ga. 121, 123; Harrell v. Nicholson, 119 Ga. 458, 46 S.E. 623; Knight v. Jackson, 156 Ga. 165, 118 S.E. Cowdrey v. Barksdale, 16 Ga.App. 387, 85 S.E. 617; Lanier v. Holt, 18 Ga.App. 18......
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Williams v. Mcelroy, (No. 16882.)
...acts which would not be so regarded if the transaction were be tween strangers living In different places." Harrell v. Nicholson, 119 Ga. 458, 460, 46 S. E. 623, 624. Nor would the fact that the negotiable instruments had not been indorsed be sufficient to defeat her right to recover, if th......