Lynch v. Johnson

• Decision Date: 31 May 1916
• Docket Number: 25.
• Citation: 89 S.E. 61,171 N.C. 611
• Parties: LYNCH v. JOHNSON ET AL.
• Court: North Carolina Supreme Court

89 S.E. 61

171 N.C. 611

LYNCH v. JOHNSON ET AL.

No. 25.

Supreme Court of North Carolina

May 31, 1916

Appeal from Superior Court, Tyrrell County.

On petition for rehearing. For former opinion, see 170 N.C. 110 86 S.E. 995. Rehearing denied.

Allen J., dissenting.

Where a duly executed deed was placed in a stamped sealed envelope addressed to the grantee and return addressed to the grantor and duly deposited in the mails, the delivery was complete and the grantee had the legal title, though he denied receipt, and the grantor denied that it was returned to him.

Small, MacLean, Bragaw & Rodman, of Washington, for appellants.

Aydlett & Simpson, of Elizabeth City, for appellee.

CLARK C.J.

This is a petition to rehear this case, reported 170 N.C. 110, 86 S.E. 995, in which the opinion was filed November 17, 1915. On the same day we filed another opinion, Hinton v. Williams, 170 N.C. 115, 86 S.E. 994, on the same point, both decisions being rendered by an unanimous court. The petition to rehear presents no question that was not discussed and considered on the former hearing, and no authority or argument appears to have been overlooked. In the former decision we held that, as the plaintiff and the defendants claimed under a common source of title, the defendants' deed being recorded, and the plaintiff claiming under an unrecorded deed, the plaintiff was not entitled to recover, and that since the amendment of June 25, 1910 (36 Stat. 838, c. 412) to the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 544) the conveyance to the trustee in bankruptcy had exactly the same effect as if it had been made (under the Connor Act [Laws 1885, c. 147]) to a purchaser for value.

The evidence, in brief, is that in 1895 C. R. Johnson purchased a tract of land from W. E. Shallington and received a deed therefor in consideration of the payment of $550. The plaintiff, Lynch, alleges and his witness Johnson testifies that Lynch paid him one-half of this amount, and that he agreed to convey one-half to said Lynch. He further testified:

"Shortly after I purchased this land in 1895, and within four or five years thereafter, I made, executed, and acknowledged a deed conveying a half interest in the same to the plaintiff, Lynch. I placed this deed in a stamped envelope with my return address on it in the post office, directing the same to the plaintiff. Mr. Lynch told me afterwards that he did not receive this deed. I was adjudged a bankrupt in the District Court of Virginia in 1911. The property described in this action was sold on May 4, 1914. I did not tell Mr. Davis (the trustee in bankruptcy) or any one else that Mr. Lynch claimed an interest in the same. After the sale was made I asserted a right of dower in the entire tract in behalf of my wife, and I executed with her a deed to the Juniper Corporation (the purchaser) releasing her right of dower in the same. The deed which I mailed to Lynch bore my return address. The deed was never returned to me. I have not seen the same since I mailed it."

The plaintiff, Lynch, also testified:

"Johnson told me some time ago that he had executed a deed to me for a half interest in this land; that the same had been mailed to me. I never received this deed. I have never listed the property for taxation since it was purchased in 1895."

It is sufficient that we rest the decision on the uncontradicted testimony of the plaintiff's witness Johnson that he duly executed and acknowledged the deed and placed it in the post office postpaid, directed to Lynch, and with Johnson's return address on the envelope, and that the deed was not returned to him. Johnson testifies that he told Lynch of this execution and deposit of the deed in the post office, and Lynch testifies that Johnson so told him. There is no evidence contradicting this fact. This was a delivery to the addressee, and completed the execution of the instrument; for there was nothing more the grantor could do. This was so held in McKinney v. Rhoads, 5 Watts (Pa.) 343.

In Phillips v. Houston, 50 N.C. 302, it is held that the delivery of a deed to a third person, signed and sealed to be proved and registered without retaining any authority or control over it, was a complete delivery. This case cites Hall v. Harris, 40 N.C. 303, which holds that there is a delivery of a deed when "signed and sealed it is put out of the possession of the maker." In the present case the uncontradicted testimony of the plaintiff's witness is that the deed was not only signed and sealed, but was duly probated, and when it was put in the mail it was beyond the control of the grantor and was a delivery. Phillips v. Houston, supra, cites many cases to the same effect, and is itself cited in many other cases. See Anno. Ed. Among these cases is Robbins v. Rascoe, 120 N.C. 80, 26 S.E. 807, 38 L. R. A. 238, 58 Am. St. Rep. 774, where the court held that:

When "the maker of a deed delivers [the same] to some third party for the grantee," without retaining any control over it, "the delivery is complete, and the title passes at once, although the grantee may be ignorant of the facts, and no subsequent act of the grantor * * * can defeat the effect of such delivery." That case cites many others, as Threadgill v. Jennings, 14 N.C. 384.

"A deed is good if delivered to a stranger to the use of the obligee," and in Tate v. Tate, 21 N.C. 26, where the deed was delivered to the uncle of the parties for the benefit of his infant children, and after his death the grantor obtained possession of it before its registration and canceled it, the court held that the title was in the children. There is also cited in Robbins v. Rascoe, supra, Kirk v. Turner, 16 N.C. 14, where the court held that, the deed being "delivered to a third party to be carried to the grantee, the acceptance is presumed until the contrary is shown." And in the present case the grantee, when told of the execution and deposit of the deed in the post office, did not repudiate it nor deny the fact. In Morrow v. Alexander, 24 N.C. 388, a father living in South Carolina delivered the deed for his daughter to his son to be delivered to his daughter, and the court held that the execution was complete and the title passed. In McLean v. Nelson, 46 N.C. 396, also cited in Robbins v. Rascoe, supra, the court held:

"When one delivers a deed to a third person, in the absence of the grantee, the latter is presumed to accept it; so that it forthwith becomes a deed, and the legal effect is to pass the property."

The above case, Phillips v. Houston, that the delivery of a deed to some third party for the grantee without the grantor retaining any control over it is a "delivery complete and the title passes at once although the grantee may be ignorant of the facts," is cited and approved by Brown, J., in Fortune v. Hunt, 149 N.C. 360, 63 S.E. 82, and Walker, J., in Buchanan v. Clark, 164 N.C. 62, 80 S.E. 424. In the present case the absolute delivery of the deed duly probated by placing it in the post office, postage paid, directed to the grantee, is proven by the testimony of the plaintiff's witness, who testifies also that he told the grantee that this had been done, and the grantee testifies that he was so informed, and offers no testimony to deny it or that he declined to accept the title. It follows that the legal title thus passed in pursuance of the previous parol agreement (if it existed) put an end to the trust, and this legal title was not destroyed by the loss of the deed any more than in the above cases where the grantor subsequently obtaining possession of the deed destroyed it before registration. It was the grantee's own fault, the plaintiff in this action, that he did not apply to Johnson to execute the deed, nor institute proceedings under Revisal, § 336, to compel re-execution of the lost deed and to register the same. He could have filed lis pendens, if necessary to protect his rights during such proceedings. The plaintiff, not having caused the deed to be re-executed and registered, is in no better position than if he had lost the deed or destroyed it before registration. The legal title was passed to him by the execution of the deed, and upon discovering its loss he could have had a re-execution or a duplicate registered.

But even if the delivery of the deed to a third party for him was not shown by the testimony of his own witness and by his failure to negative such delivery, or when told of the fact to repudiate the transaction, was not sufficient, there are other reasons why the plaintiff cannot recover. Equity will not enforce a stale claim. On the evidence here of the plaintiff it was more than 19 years after the alleged oral agreement was made to convey a half interest in this land to him before he took any steps to assert his rights. It was 15 years after the deed was deposited in the post office duly executed and directed to him before he moved in the matter. The grantor went into bankruptcy in 1911, and for 3 years he took no steps to notify the trustee in bankruptcy that he had any claim, though the land was fully described in the advertisement thereof, and he did not object to the confirmation of the sale. It is true he testified that at the sale in an ordinary tone of voice he stated to the crier (not to the trustee or the purchaser) that he claimed an interest in this land. The trustee in bankruptcy and Mr. Hardy, president of the National Bank of Norfolk, who was president of the Juniper Corporation and bought the land for said company, both testified that they did not see Lynch at the sale, and had no notice at that time or any other before this action was brought that the plaintiff asserted any interest in the land. The land when conveyed to Johnson brought $550, of which the plaintiff...