Kirk v. Turner

• Decision Date: 31 December 1826
• Citation: 16 N.C. 14
• Court: North Carolina Supreme Court
• Parties: JOHN L. F. KIRK AND OTHEE INFANTS, BY THEIE NEXT FBIEND, JOHN L. KIRK, v. JOSIAH TURNER, ADMINISTRATOR DE BONIS NON OF THOMAS WHITHEAD.

16 N.C. 14

JOHN L. F. KIRK AND OTHEE INFANTS, BY THEIE NEXT FBIEND, JOHN L. KIRK,

v.JOSIAH TURNER, ADMINISTRATOR DE BONIS NON OF THOMAS WHITHEAD.

SUPREME COURT OF NORTH CAROLINA AT RALEIGH

DECEMBER TERM, 1826

1. A delivery of a deed is a parting with the possession of it by the grantor in such a manner as to deprive him of a right to recall it.

2. Where a deed was handed to the subscribing witness, as the agent of the grantor, for the purpose of being proved, and was by the agent delivered to the grantor without being proved: Held, that this was not a delivery.

3. It seems where a claim is asserted on the part of infants, who have an appearance of right, each party must pay their own costs.

From ORANGE. Original bill, the allegations of which were that Sarah Kirk, the grandmother of the plaintiffs, being about to contract a marriage with Thomas Whithead, and being desirous of settling her

property upon the plaintiffs, applied to one Snipes to draw deeds of gift to them for certain slaves; that the deeds were drawn accordingly, reserving a life estate in the slaves to Sarah; that Sarah executed the deeds, and that they were attested by Snipes, and left with him for safe keeping; that after the marriage was solemnized, the deeds came into the possession of Whithead, and were by him destroyed. The bill also alleged that Whithead had notice of all these facts, and had in his lifetime disclaimed all right to the negroes, except a right to their services during his life, and prayed that the deeds might be set up in this Court and the title of the plaintiffs protected in the same manner as if they had been regularly registered.

The answer denied all personal knowledge of the transaction,and put the plaintiffs to strict proof of their case.

Snipes, on his examination, proved that the deeds were drawn by him, signed and attested as alleged in the bill; that after he witnessed them, he was asked by Mrs. Kirk if he would be at the next court, as she wished the deeds recorded; that he replied it was uncertain, and that she had better go and acknowledge them, whereupon the deeds were handed to Mrs. Kirk, and had not since been seen by the witness.

Another witness, who was seriously impeached, swore that Whithead and his wife both informed him that the latter had, before the marriage, given her negroes to the children of John L. Kirk, the present plaintiffs, reserving a life estate to them both.

A third witness testified that he had applied to Whithead to buy a negro boy, formerly Mrs. Kirk's, and was informed that he could not make a good title to him.

HENDERSON, J. A delivery of a deed is, in fact, its tradition from the maker to the person to whom it is made, or to some person for his use, and if the person receiving it for another is authorized to do so, it is not only immediately the maker's deed, but it cannot be rejected by the grantee. If he has not authorized the person to receive it, yet it is the maker's deed until he for whose benefit it is made rejects it. It does not wait for the approbation of this person before it becomes a deed; for his acceptance is presumed until the contrary is shown. It being for his interest, the presumption is, not that he will accept, but thathe does. Therefore, if there was any evidence that the deed in question was left with Snipes for the benefit of Mrs....