Harris v. Geneva Mill Co.

• Court: Alabama Supreme Court
• Writing for the Court: THOMAS, J.
• Citation: Harris v. Geneva Mill Co., 209 Ala. 538, 96 So. 622 (Ala. 1923)
• Decision Date: 08 February 1923
• Docket Number: 4 Div. 4.
• Parties: HARRIS v. GENEVA MILL CO.

96 So. 622

209 Ala. 538

HARRIS v. GENEVA MILL CO.

4 Div. 4.

Supreme Court of Alabama

February 8, 1923

Rehearing Denied May 24, 1923.

Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.

Action in ejectment by Margaret Harris against the Geneva Mill Company. Judgment for defendant, and plaintiff appeals. Affirmed.

O. S Lewis, of Dothan, for appellant.

W. O Mulkey, of Geneva, for appellee.

THOMAS J.

Where a deed is delivered in escrow, and the grantee failed in performance of the agreement on which delivery was dependent there can be no vesting of title in grantee by the unauthorized transfer of possession by depositary of the conveyance to the grantee. Gibson v. Gibson, 200 Ala. 591, 76 South 949; Jones v. First National Bank, 206 Ala. 203, 89 So. 437; Culver v. Carroll, 175 Ala. 469, 57 So. 767, Ann. Cas. 1914D, 103; Gulf Coal & Coke Co. v. Alabama Coal & Coke Co., 145 Ala. 228, 40 So. 397; Tarwater v. Going, 140 Ala. 273, 37 So. 330; Ashford v. Prewitt, 102 Ala. 264, 273, 14 So. 663, 48 Am. St. Rep. 37; Fuller v. Hollis, 57 Ala. 435.

The general rule prohibiting the variance of a written contract by parol evidence in litigation between the same parties to the writing, or their privies, is given expression in many decisions of this court that need not be cited. It is subject, however, to exceptions. The admission of parol evidence of the execution and the true date thereof, the true consideration (not to vary its nature), the date of delivery, or the fact that there was no delivery. The rule does not exclude such parol evidence in an action between a party to the instrument and a stranger, nor is it binding upon either of the parties in their controversies with third persons. Jones v. First National Bank, 206 Ala. 203, 207, 89 So. 437. However, when a deed is found in the possession of a grantee, the prima facie presumption is that it was duly delivered to him; such presumption being rebuttable, it may be shown by parol that the grantee came into possession of the written instrument in an unwarranted manner. Firemen's Ins. Co. v. McMillan, 29 Ala. 147; Wright v. Lang, 66 Ala. 389, 396; Jones v. Atkinson, 68 Ala. 167; Williams v. Higgins, 69 Ala. 517, 522; Corley v. Vizard, 203 Ala. 564, 84 So. 299.

In Fitzpatrick v. Brigman, 130 Ala. 450, 453, 30 So. 500, 501 (statutory ejectment), it was declared that one of the important questions for decision-

"is, whether the deed from Price to one Buck, through whom plaintiff claims to have derived his title by mesne conveyances, was delivered prior to the execution and recordation of the deed from Price to defendant. As delivery was necessary to convey title, if the deed was not delivered to Buck until after Price had executed the deed to the defendant, Buck got no title and of consequence conveyed nothing by his deed to Elder, from whom plaintiff got his deed. Goodlett v. Kelly, 74 Ala. 213, 220. In short, a deed becomes effectual only, as a conveyance of the title, from the date of its delivery. It is true the presumption will be indulged, in the absence of evidence to the contrary, that the date of the deed, or where the acknowledgmentnecessary to its execution bears a different date, the date of the acknowledgment, is the date of its delivery. This presumption, however, is a disputable one, and the time of delivery may always be shown."

See Skipper v. Holloway, 191 Ala. 190, 67 So. 991; Veitch v. Woodward Iron Co., 200 Ala. 358, 361, 76 So. 124.

If the conveyance is duly acknowledged and recorded, the presumption of delivery attaches, which can be repelled only by evidence of the actual dissent of the grantee. Elsberry v. Boykin, 65 Ala. 336, 341. The intention of the grantor is the controlling element in case of a delivery to a third person (Gibson v. Gibson, 200 Ala. 591, 76 So. 949; 18 C.J. § 100, p. 205), and, if delivered to a third person for the use of the grantee, the delivery is consummated. Fitzpatrick v. Brigman, supra; T. C. I. & R. Co. v. Wheeler, 125 Ala. 538, 28 So. 38; Culver v. Carroll, 175 Ala. 469, 57 So. 767, Ann. Cas. 1914D, 103; 18 C.J. § 99, p. 203.

In Culver v. Carroll, 175 Ala. 469, 476, 477, 57 So. 767, 769, 770 (Ann. Cas. 1914D, 103), this court said:

"Perhaps the clearest and completest statement of the law on this subject is the following, by Dowling, J., in Osborne v. Eslinger, 155 Ind. 351, 360, 58 N.E. 439 442, 80 Am. St. Rep. 240, 247: 'Where the claim of title rests upon the delivery of the deed to a third person, the deed must have been properly signed by the grantor, and delivered by him, or by his direction, unconditionally, to a third person for the use of the grantee, to be delivered by such person to the grantee, either presently, or at some future day, or upon some inevitable contingency, the grantor parting, and intending to part, with all dominion and control over it, and absolutely surrendering his possession and authority over the instrument, so that it would be the duty of the custodian or trustee for the grantee, on his behalf, and as his agent and trustee, to refuse to return the deed to the grantor, for any purpose, if demand should be made upon him. And there should be evidence beyond such delivery of the intent of the grantor to part with his title, and the control of the deed, and that such delivery is for the use of the grantee. If the deed is placed in the hands of a third person, as the agent, friend, or bailee of the grantor, for safe-keeping only, and not for delivery to the grantee; if the fact that the instrument is a deed is not made known to such third person, either at the time it is handed over, or at any time before the death of the grantor; if the name of the grantee, or other description of him, is not given; and if there is no evidence beyond the mere fact of such delivery of the intent of the grantor to part with his control over the instrument and his title to the land-then such transfer of the mere possession of the instrument does not constitute a delivery, and the instrument fails for want of execution."'

The judgment of the trial court was based upon whether or not the deed was an escrow. The finding of fact and effect of the judgment was of delivery to the grantee, or to Mr. Jeter for the use of the grantee, that the purchase money was paid to...